[G.R. No. 129057.

January 22, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BILLY DE LEON, DOMINADOR DE LEON and LEOPOLDO DE LEON, accused. DOMINADOR DE LEON and LEOPOLDO DE LEON, accused-appellants. DECISION DE LEON, JR., J.: This is an appeal from the Decision [1] dated January 30, 1997 of the Regional Trial Court, Branch 38, Lingayen, Pangasinan, in Criminal Case No. L-5499, finding accused-appellants Leopoldo and Dominador, both surnamed de Leon, guilty of murder and sentencing them to suffer the penalty of Reclusion Perpetua and to pay, jointly and severally, the heirs of the deceased victim, Ignacio Jimenez, the sum of P15,000.00 as actual damages, P50,000.00 as compensatory damages and P50,000.00 as moral damages, as indemnity plus the cost of the suits. The record shows that on July 23, 1996, Assistant City Prosecutor (on detail) Abraham L. Ramos II filed with the Regional Trial Court of Lingayen, Pangasinan an Information charging the brothers, Billy, Dominador and Leopoldo, all surnamed de Leon, with murder, allegedly committed as follows: That on or about the 13th day of June 1996 in the afternoon, in barangay Lomboy, Municipality of Binmaley, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a bladed instrument, with treachery and used of superior strength and intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and stab Ignacio Jimenez, inflicting upon him the following: multiple stab wounds chest multiple hacked wound head with fracture

which injuries directly caused his death, to the damage and prejudice of the heirs of the said Ignacio Jimenez. Contrary to Article 248 of the Revised Penal Code. [2]

Only appellants Leopoldo and Dominador de Leon were brought to trial inasmuch as coaccused Billy de Leon evaded arrest. Upon being duly arraigned, Leopoldo and Dominador pleaded Not Guilty.[3] The prosecutions case relied primarily on the testimony of prosecution witnesses, Chito (Tito) Jimenez and Annaluz Hilarion, who claimed to have personally witnessed the killing as well as on the post-mortem examination and findings of Dr. Nicanor Arzadon who testified thereon. Chito Jimenez, son of the victim, Ignacio Jimenez, testified that on June 13, 1996 at around 3:00 oclock in the afternoon, while watching a game of pool beside the house of Romy Castro in Barangay Lomboy, Binmaley, Pangasinan, he saw accused Billy de Leon struck his father, Ignacio with a cap. Chito called the attention of Billy to the fact that his father was already old. Instead of heeding Chitos request, Billy boxed him on the stomach, forcing Chito to retaliate, thus a fistfight ensued. Ignacio pacified Billy and Chito, after which Ignacio and Billy left while Chito remained in the said place. Ten (10) minutes later, Billy returned, and immediately boxed and slapped Chito several times and drew a 10-inch long bolo. Chito ran towards the southern direction and met his father, Ignacio who came out of their house. While he was 10 meters away from his father, he stopped and saw Billy accosting and stabbing his father on the stomach several times. At that very instant, Leopoldo and Dominador arrived, and thereupon Leopoldo held the arms of his father, Ignacio, while Dominador stabbed the back portion of Ignacios head. Thereafter, the three (3) brothers ran away while the victim, Ignacio, walked towards his house and once near Chito, told his son to bring him to the hospital. Chito called Annaluz Hilarion who was five (5) meters away from the incident, to accompany them to the hospital. The victim was brought to the Pangasinan Provincial Hospital in Dagupan City where he later expired. [4] Annaluz Hilarion corroborated the testimony of Chito Jimenez on some material points. Annaluz testified that at around 3:00 oclock in the afternoon of June 13, 1996 while she was resting in their house, she heard a startling commotion outside their house. Immediately, she stood up and looked through the window and saw Chito running southward to their house, and being chased by Billy who was followed by Leopoldo and Dominador. She also saw Chitos father, Ignacio, walking towards the opposite direction. When the de Leon brothers met Ignacio, they accosted the latter. Billy stabbed Ignacio on the stomach and then Leopoldo held the arms of Ignacio while Dominador took his turn in stabbing the said victim at the back of his head. Thereafter, Billy continued stabbing Ignacio on the right side of the stomach several times, and then the said de Leon brothers ran away. Ignacio struggled toward the direction of his house, but he fell down and was not able to reach the same. Together with Chito, they brought the victim to the Pangasinan Provincial Hospital in Dagupan City but expired while being treated.[5] Annaluz likewise stated that neither Chito nor Ignacio was holding a stone or any weapon at the time she saw them. [6] Nicanor Arzadon, resident physician of the Pangasinan Provincial Hospital [7] at Dagupan City testified on the injuries sustained by Ignacio and the cause of his death. He testified that he conducted an autopsy of the victim several hours after the latters death and thereafter

prepared an autopsy report. In his post-mortem examination,[8] he observed the following wounds sustained and the cause of death of the victim, thus: 1. Incised wound 7 cm. angle of mandible (L) located on the left face; 2. Hacked wound 8 cm. Temporal area (L) on the left side of the head; 3. Stab wound 3 cm. (L) midaxillary line, level of the 7th ICS, penetrating, perforating middle portion lower lobe (L) lung; 4. Stab wound 4 cm., 8th ICS, ant. Axillary line, penetrating, lacerating diaphragm, penetrating, perforating greater curvature of stomach; 5. Stab wound 4 cm. mid. Hypochondria area, (L) penetrating, perforating lesser curvature; 6. Stab wound, 3 cm. Epigastric area (L) penetrating, perforating body of stomach, thru and thru, penetrating, lacerating body of pancreas; 7. Stab wound 7 cm. Intercostal space, mid-clavicular line (R) non-penetrating, right side below right nipple; 8. Stab wound 3 cm. Intercostal space, midclavicular line (R) penetrating lacerating lower lobe (R) liver; 9. Hacked wound, 6 cm. parietal area; 10. Massive intra-abdominal bleeding.

CAUSE OF DEATH: Hypovolemia 2o to multiple stab wound. Dr. Nicanor Arzadon declared that a sharp bladed instrument caused the said wounds, and based on the sizes of the wounds, it is likely possible that two (2) or more kinds of weapons were used in hacking or stabbing the victim. [9] Rita Jimenez, wife of victim Ignacio, testified regarding the expenses incurred by the family in connection with her husbands death, as follows: for the 9 days vigil, P4,500.00; for coffin and funeral services, P7,500.00; for the autopsy examination, P1,000.00; for wreath, P1,000.00; for the last night vigil, P3,500.00; for food and fish, P2,000.00; for church rites, P600.00; for the novena, P500.00; and for the lompos, P1,500.00.[10] On their part, both accused-appellants Leopoldo and Dominador invoked the defense of denial and alibi. They claimed that in the afternoon of June 13, 1996, they went to Manat, Binmaley upon the invitation of Modesto Reyes, to harvest fish in the latters fishpen. They arrived at around 1:00 oclock in the afternoon and left the said place at around 3:00 oclock in the afternoon of the same day. At around 4:00 oclock, they were already home. Mercedes, wife of Leopoldo, informed them that their brother, Billy, stabbed Ignacio. Mercedes told Leopoldo not to go out of the house as Ignacios sons might retaliate against them. When the policemen arrived, Leopoldo and Dominador were invited to the police station. After some questioning by SPO4 Crispin Cancino, they were asked to go out of the room and made to sign

the police blotter. They were not allowed to leave the police station, and on the following day, they were placed behind bars.[11] Mercedes de Leon, wife of Leopoldo, Dina de Leon, wife of Dominador and Modesto Reyes, owner of the fishpen where accused-appellants have allegedly harvested fish, tried to corroborate accused-appellants alibi. Those three (3) defense witnesses declared that at the time of the stabbing incident, Leopoldo and Dominador were at Manat, Binmaley, Pangasinan, harvesting fish; and that accused-appellants arrived home from Manat at 4:00 oclock in the afternoon, or after the stabbing incident. On January 30, 1997, a Decision was rendered by the trial court finding accused-appellants guilty of murder. The judgment reads: Accordingly, in the light of all the considerations discussed above, the court finds and holds the accused, Dominador de Leon and Leopoldo de Leon, guilty beyond reasonable doubt of the crime of Murder charged in the Information filed against them, and pursuant to law, hereby sentences each of the above-named accused to suffer the penalty of Reclusion Perpetua and to pay proportionately the cost of the proceedings. The court further directs the accused to indemnify jointly and severally the heirs of the deceased, the sum of P15,000.00 as actual damages; P50,000.00 as compensatory damages and P50,000.00 as moral damages, without subsidiary imprisonment in case of insolvency. And considering that accused, Billy de Leon is still at large and has not yet been arrested up to the present, let the record of the case insofar as said accused is concerned be sent to the files, without prejudice on the part of the prosecution to prosecute him after he is arrested or has surrendered to the court. Meantime, let an order of arrest be issued against accused Billy de Leon, to be served upon him by the PNP, Binmaley, CIG, Dagupan City and NBI, Dagupan City. SO ORDERED. Hence, this appeal. Accused-appellants, in their appeal prayed for acquittal by (1) impugning the credibility of the two (2) main prosecution witnesses, Chito Jimenez and Annaluz Hilarion, and (2) claiming alibi that they were somewhere else when the crime happened. On the first issue for resolution, i.e. whether the trial court erred in giving credence to the prosecutions version of the incident that not only Billy de Leon, but also accused -appellants Leopoldo and Dominador were guilty of stabbing the victim, Ignacio Jimenez, to death, well settled is the rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner while testifying during the trial, unless the trial court has plainly

overlooked certain facts of substance and value that, if considered, might affect the result of the case.[12] No cogent reasons exist to disturb the factual findings of the trial court, more particularly on its assessment of the credibility of the prosecution witnesses. The trial court correctly ascertained that the testimonies of the prosecution witnesses Chito and Annaluz clearly and adequately proved how the killing happened and the extent of accused-appellants participation in that incident. Both witnesses testified in a straightforward, clear and positive manner and the court finds no valid and plausible reason to discredit the truth and veracity of their narration. As recounted by Annaluz in her testimony ATTY. BASBAS Will you kindly tell the Honorable Court what was that incident that called your attention, Madam Witness? A Q A Q A They said that there is trouble, sir. What, if any, did you do when you heard the word in Pangasinan dialect, gulo, which means trouble? I stood up and looked out the window, sir. What, if any, did you see when you looked out the window? I saw Chito Jimenez running, then, Ignacio Jimenez passed by, sir.

COURT Passed by your house? A Yes, sir.

ATTY. BASBAS To what direction was Chito Jimenez proceeding when you saw him running? A Q A Q A Q A Q A Towards their house, south direction, sir. How about Ignacio Jimenez? While Ignacio Jimenez was running towards the north direction, sir. By the way, do you know the relation between Ignacio Jimenez and Chito Jimenez? They are father and son, sir. What happened next after you saw Chito Jimenez running towards their house going to southern direction and Ignacio Jimenez on the northern direction? Billy de Leon, Dominador de Leon and Leopoldo de Leon were also running, sir. To what direction were [sic] Billy de Leon, Dominador de Leon and Leopoldo de Leon proceedings when you saw them running? They were chasing Chito Jimenez, sir, going south.

Q A Q A Q A Q A Q A Q A Q A Q

What happened next after you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Chito Jimenez? They saw Ignacio Jimenez and they accosted him, sir. When you said they accosted him, to whom are you referring to as accosted? Ignacio Jimenez, sir. After Ignacio Jimenez was accosted by the three (3) Billy de Leon, Dominador de Leon and Leopoldo de Leon, what happened next? They stabbed him, sir. Do you know who among the three (3) stabbed Ignacio Jimenez? First, it was Billy de Leon who stabbed Ignacio Jimenez while Leopoldo de Leon held Ignacio Jimenez, sir. After Leopoldo de Leon held Ignacio Jimenez, what happened next? Then, Dominador de Leon stabbed Ignacio Jimenez on his head, sir. (Witness pointing the back top of the head). Will you kindly stand up, Madam witness, and demonstrate before this Honorable Court how did Leopoldo de Leon hold Ignacio Jimenez? Like this, sir (Witness place herself behind with both arms holding the shoulder. The court interpreter represents the victim in the demonstration through the armpit). What happened next after Dominador de Leon stabbed Ignacio Jimenez at the back of his head? Then, Billy de Leon kept on stabbing the victim, sir. By the way, Madam Witness, you mentioned a while ago that Billy de Leon first stabbed Ignacio Jimenez, my question, what part of the body of Ignacio Jimenez was hit by Billy de Leon when he was first stabbed by Billy de Leon? On his stomach, sir (Witness pointing to the right side of his stomach). And when you said that Billy de Leon continued stabbing Ignacio Jimenez after he was stabbed by Dominador de Leon at the back of his head, what part or parts of the body of Ignacio Jimenez was hit by Billy de Leon? On the abdomen, sir. What happened next after Billy de Leon stabbed Ignacio Jimenez in the abdomen? The three (3) ran away, sir.[13]

A Q

A Q A

On cross-examination, Annaluz categorically stated that: ATTY. CAMPOS

By the way, who was the first one whom you saw running among the three? A Billy de Leon was ahead, sir.

COURT Followed by? A Dominador de Leon and Leopoldo de Leon, sir.

ATTY. CAMPOS As you sense they were running, they were chasing Chito Jimenez? A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q Yes, sir. And they were unable to catch Chito Jimenez? No, sir. At that time when you saw Billy de Leon, he was already injured, am I correct? Not yet, sir. You did not see him to have wound on his head? None, sir? Along their way, Madam Witness, the three (3), Billy de Leon, Dominador de Leon and Leopoldo de Leon, met Ignacio Jimenez who was running towards north? Yes, sir. It was at that instance the three (3) met Ignacio Jimenez when the three (3), according to you, stabbed Ignacio Jimenez? Yes, sir. When you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Jimenez, you did not see them arm, am I correct? They were armed, sir. And who was armed, Madam Witness? The three (3) were armed, sir. And what was Billy de Leon carrying with him as a weapon? Billy de Leon was carrying a bolo about one (1) foot long, sir. How about Dominador de Leon? Bolo with the same size, sir. How about Leopoldo de Leon?

A Q A Q A

Before he held Ignacio Jimenez on the shoulders, he threw his bolo, sir. Were you able to find this bolo which was thrown by Leopoldo de Leon? No more, sir. You saw where Leopoldo de Leon threw the bolo? At the time they ran away towards their house, they picked up the bolo and then brought with them, sir.[14] Likewise, Chito Jimenez on cross-examination declared that:

ATTY. CAMPOS The moment you met your father along your way when you were running, the two (2) other accused, Leopoldo de Leon and Dominador de Leon, were not yet around? A Q A Q A Q A Q A Q A Q A Q A After I met my father, then, my father met Billy de Leon and then the two (2) Dominador and Leopoldo de Leon, appeared sir. From what direction did these two (2) other accused, Leopoldo de Leon and Dominador de Leon, come from, Mr. Witness? They came from their house, sir. By the way, how far is the house of Leopoldo de Leon from that place where you met your father when you were running? Just beyond the concrete fence, about fifteen (15) meters from the fence of the court building, sir. And how about the house of Dominador de Leon in relation to that place where you met your father along your way when you were running? The same distance, sir. According to you, you were running so fast and you ran as fast as you could towards your house, you never look back when you were running? I looked back, sir. How could that be that you recognized these two (2) other accused, Leopoldo de Leon and Dominador de Leon, when you were running fast? I stopped, sir. When you reached your house, am I correct? Yes, sir. And you stayed inside your house upon reaching your house, is that correct? I did not proceed home but I stopped besides the house of Annaluz, sir.

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

And you are now changing your testimony when you said a while ago that you stopped running upon reaching home? Yes, sir, is not true. The truth now is that, you where, Mr. Witness? Ten (10) meters away from the place of stabbing, sir. Why did you stop, Mr. Witness? Because Billy de Leon accosted my father and then these two (2) brothers arrived, sir. Did you really see how Billy de Leon accosted your father? Yes, sir. When your father was accosted by Billy de Leon, you did not notice Leopoldo de Leon and Dominador de Leon around? It was then that the two (2) arrived, sir. And the moment Billy de Leon accosted your father, he stabbed your father? Yes, sir. Comes these two (2) other accused, first, Leopoldo de Leon held the arms of your father, then Dominador de Leon whom you alleged to have also stabbed your father? Yes, sir. And when these were happening you were about ten (10) meters away from the four (4)? Yes, sir. And while Ignacio Jimenez or your father was being handled by the three (3) accused, you did not do anything just watched, am I correct? Yes, sir. I watched them because I got frightened, sir. You did not come to the aid of your father? No, sir. Neither that you called for help from other persons who were around? No, sir. But there were other persons around, am I correct? I did not notice, sir. And so, your attention was only focused on what was happening to your father? Yes, sir.[15]

In an attempt to discredit the prosecution witnesses, accused-appellants contend that their testimonies are contradictory in that while Annaluz testified that accused-appellants Leopoldo and Dominador ran with Billy in chasing Chito, prosecution witness Chito, on the other hand, declared that Leopoldo and Dominador appeared only when his father, Ignacio, was being accosted by Billy. The inconsistencies, if any, were more imaginary than real. Besides, the inconsistencies, if any, in the testimony of the prosecution witnesses refer only to minor details and collateral matters which do not affect the substance, veracity, and weight of their testimony. They even tended to strengthen rather than weakened, the credibility of the witnesses as they negate any suspicion of a rehearsed testimony. [16] Furthermore, the court cannot and should not expect the testimonies of different witnesses to be completely identical and to coincide with each other for not all persons who witnessed an incident are impressed in the same manner; and it is only natural that, in relating their impressions, they might disagree on some minor details. The credibility of the prosecution witnesses is not affected by their relationship with the deceased. The fact that witness Chito is the son of the victim while Annaluzs mo ther-in-law is the second cousin of the wife of the victim is of no consequence since mere relationship with the victim does not necessarily tarnish the testimony of a witness. When there is no showing of improper motive on the part of the witness in testifying against the accused, her relationship with the victim does not render her testimony less worthy of full faith and credence. [17] In fact, relationship itself could even strengthen credibility in a particular case, for it is highly unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence to blame one who is innocent of the crime. [18] Likewise, as shown by the medical examination, the victim sustained nine (9) stab wounds. Dr. Arzadon who conducted the post mortem examination of the victim opined that two (2) different weapons could have caused the wounds of the victim. He testified: COURT Now, considering the two possibilities that it could be one weapon or more than two weapons, what is the greater possibility? A Q A Q A Q A I could not tell, sir. You could not tell despite the fact that there are different sizes as you say about the length? In my opinion, it is more than two, sir. So, the greater possibility is more than two weapons? Yes, sir. Now, considering also the nature of the wounds more particularly in their sizes, is it possible that there are more than one weapon used in inflicting the injuries? It is possible, sir.

Q A Q A

Is it also possible that there is only one weapon used or not possible? It is possible, sir. Considering now the two possibilities, which is more possible considering the sizes of the wounds, there are two or more kinds of weapon used or only one kind of weapon? More than one kind of weapon, sir.[19]

Billy could not have been solely responsible for all the stab wounds sustained by the victim as the same were in all probability caused by two (2) different weapons. None of the witnesses for the defense, more particularly Mercedes de Leon, who testified that Billy was the only one responsible, declared on the witness stand that Billy used more than one weapon in stabbing the victim. On the other hand, accused-appellants defense is a bare and shallow alibi which is a weak defense. It should be rejected inasmuch as the identities of the accused, as in the case at bar, have been sufficiently and positively established by eyewitnesses to the offense. [20] As amply observed by the trial court, there is no proof of physical impossibility for the accused-appellants to be present in the scene of the crime. Hence, in the light of the positive identification of accused-appellants, by two (2) eyewitnesses, as the perpetrators of the crime, their defense of denial and alibi cannot prosper. On the matter of conspiracy, we have consistently held that conspiracy need not be shown by direct proof of an agreement by the parties to commit the crime. [21] It is sufficient that there is a common purpose and design, concerted action and concurrence of interests and the minds of the parties meet understandingly so as to bring about a deliberate agreement to commit the offense charged, notwithstanding the absence of a formal agreement.[22] The credible testimonies of prosecution witnesses Annaluz and Chito disclosed that after Billy accosted Ignacio, the former stabbed the latter on the stomach one or two (2) times, then Leopoldo held the arms of Ignacio; and then Dominador took his turn in stabbing the victim at the back of the head. Billy continued stabbing the victim, and then the three (3) accused-brothers left and ran away at the same time. These concurrent actions of accused Billy and accused-appellants Leopoldo and Dominador which revealed a mutual intention and determination to kill the victim, Ignacio, indicated conspiracy. We likewise affirmed the trial courts holding that the killing is qualified to murder by abuse of superior strength, accused-appellants having overpowered the unarmed victim in terms of number and weapons used. To take advantage of superior strength is to purposely use excessive force out of proportion to the means of defense available to the person attacked.[23] Although superiority in number is not always superiority in strength, the same is decidedly true in the case at bar where all the appellants were armed. Furthermore, there was only one adversary, an unarmed man who at that time was in no position to defend himself. As aptly held by the trial court and we quote: In the case at bar, the evidence on record shows that during the stabbing accused Leopoldo de Leon held the victim while his brothers Billy and Dominador stabbed him several times in the

different parts of his body. Such being the state of affairs at the time the incident happened, the combined strength of the three accused is more superior than the strength of the deceased who was much older than the accused. Verily, the stabbing is qualified by the circumstance of abuse of superior strength, hence the killing is murder as charged in the Information. Anent accused-appellants civil liability, the award of P15,000.00 as actual damages should be deleted inasmuch as there were no receipts presented to evidence the same. The award of P50,000.00 designated as compensatory damages by the trial court should be properly denominated as civil indemnity ex delicto. This amount of indemnity is in accordance with jurisprudence and it requires no proof other than the fact of death as a result of the crime and proof of the appellants responsibility therefor. WHEREFORE, the appealed Decision dated January 30, 1997 of the Regional Trial Court of Lingayen, Pangasinan, Branch 38, in Criminal Case No. L-5499 finding appellants Leopoldo de Leon and Dominador de Leon, guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of Reclusion Perpetua is AFFIRMED with MODIFICATION that appellants are ordered to pay, jointly and severally, only the amounts of P50,000.00 as civil indemnity ex delicto and P50,000.00 as moral damages, to the heirs of the victim, Ignacio Jimenez. The award of P15,000.00, as actual damages, is deleted for lack of proof thereof. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 84450 February 4, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GLORIA UMALI y AMADO AND SUZETH UMALI y AMADO, defendants-appellants. The Solicitor General for plaintiff-appellee. Public Attorney's Office for defendants-appellants.

MEDIALDEA, J.:p

In Criminal Case No. 85-473 of the Regional Trial Court, Branch 53, Lucena City, Gloria Umali and Suzeth Umali were charged for violation of Section 4, Article 1 of the Dangerous Drugs Act of 1972 under an information which reads: That on or about the 22nd day of April, 1985, at Recto Street, Poblacion, Municipality of Tiaong, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously sell, deliver and give marijuana or Indian Hemp, a prohibited drug to one Francisco Manalo y Arellano, without authority of law. Contrary to law. (Rollo, pp. 7-8) Upon arraignment, Gloria Umali entered a plea of "not, guilty" as accused Suzeth Umali remained at large. After trial, the lower court rendered a decision on September 9, 1987, the dispositive portion thereof states: WHEREFORE, premises considered, this Court finds accused Gloria Umali guilty beyond reasonable doubt of violating Sec. 4, Art. 1 (sic) of RA 6425 as amended, otherwise known as the Dangerous Drugs Act of 1972, and is hereby sentenced to suffer the penalty of Reclusion Perpetua. Accused being a detention prisoner is entitled to enjoy the privileges of her preventive imprisonment. The case against Suzeth Umali, her co-accused in this case is hereby ordered ARCHIVED to be revived until the arrest of said accused is effected. The warrant of arrest issued against her is hereby ordered reiterated. SO ORDERED. (Rollo, p. 30) Hence, this appeal from the lower court's decision with the following assignment of errors: I THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE BIASED TESTIMONY OF FRANCISCO MANALO II THE COURT A QUO GRAVELY ERRED IN ADMITTING THE PROSECUTION'S EVIDENCE WHICH WERE OBTAINED IN VIOLATION OF ACCUSED'S CONSTITUTIONAL RIGHTS AGAINST ILLEGAL SEARCH AND SEIZURE III

THE COURT A QUO GRAVELY ERRED IN DECLARING THAT ACCUSED NEVER DISPUTED THE CLAIM THAT SHE WAS THE SOURCE OF MARIJUANA LEAVES FOUND IN THE POSSESSION OF FRANCISCO MANALO ON APRIL 5, 1985 AND THAT WHICH WAS USED BY PIERRE PANGAN RESULTING TO THE LATTER'S DRUG DEPENDENCY IV THE COURT A QUO GRAVELY ERRED IN FINDING ACCUSED GLORIA 1, GUILTY OF VIOLATION OF DANGEROUS DRUGS ACT OF 1972 ON THE BASIS OF MERE CONJECTURES AND NOT ON FACTS AND CIRCUMSTANCES PROVEN V THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE GUILT OF THE ACCUSED DID NOT PASS THE TEST OF MORAL CERTAINTY. (Rollo, p. 49) The antecedent facts of this case as recounted by the trial court are as follows: On April 27, 1985 Pierre Pangan a minor was investigated by Pat. Felino Noguerra for drug dependency and for an alleged crime of robbery. In the course of the investigation, the policemen discovered that Pierre Pangan was capable of committing crime against property, only if under the influence of drug (sic). As Pierre Pangan is a minor, the police investigators sought the presence of his parents. Leopoldo Pangan, father of the minor was invited to the police headquarters and was informed about the problem of his son. Mr. Pangan asked the police investigators if something could be done to determine the source of the marijuana which has not only socially affected his son, but other minors in the community. Previous to the case of Pierre Pangan was the case of Francisco Manalo, who was likewise investigated by operatives of the Tiaong, Quezon Police Department and for which a case for violation of the Dangerous Drug Act was filed against him, covered by Criminal Case No. 85-516 before Branch 60 of the Regional Trial Court of Lucena City. Aside from said case, accused Francisco Manalo was likewise facing other charges such as concealment of deadly weapon and other crimes against property. Pat. Felino Noguerra went to the Tiaong Municipal Jail, and sought the help of Francisco Manalo and told him the social and pernicious effect of prohibited drugs like marijuana being peddled to minors of Tiaong, Quezon. Manalo although a detention prisoner was touched by the appeal made to him by the policeman and agreed to help in the identification of the source of the marijuana. In return he asked the policeman to help him in some cases pending against him. He did not negotiate his case for violating the dangerous drug act, as he has entered a plea of guilty to the charged (sic) before the sala of Judge Eriberto Rosario.

With the consent of Francisco Manalo, Pfc. Sarmiento, Chief of the Investigation Division gave him four (4) marked P5.00 bills to buy marijuana from sources known to him. The serial numbers of the money was entered in the police blotter. The instruction was (sic) for Manalo to bring back the prohibited drug purchased by him to the police headquarters. Few minutes there after (sic), Manalo returned with two (2) foils of dried marijuana which lie allegedly bought from the accused Gloria Umali. Thereafter, he was asked by the police investigators to give a statement on the manner and circumstances of how he was able to purchase two (2) marijuana foils from accused Gloria Umali. With the affidavit of Francisco Manalo, supported by the two (2) foils of marijuana. the Chief of the Investigation Division petitioned the Court for the issuance of a search warrant as a justification for them to search the house of Gloria Umali located at Rector (sic) Street. Poblacion, Tiaong, Quezon. After securing the same, the police operatives, went to the house of Gloria Umali and served the search warrant on her. Confiscated from the person of Gloria Umali were the four P5.00 bills with serial numbers BA26943, DT388005, CC582000 and EW69873, respectively as reflected in the police blotter. Likewise, present in the four (4) P5.00 bills were the letters T which were placed by the police investigators to further identify the marked four (4) P5.00 bills. The searched (sic) in the house was made in the presence of Brgy. Capt. Punzalan. The search resulted in the confiscation of a can of milo, containing sixteen (16) foils of dried marijuana leaves which were placed in a tupperware and kept in the kitchen where rice was being stored. The return of the search warrant reads as follows: DATE: 22 April 1985 WHAT: "RAID" WHERE: Residence of Dr. Emiliano Umali Poblacion, Tiaong, Quezon WHO: MBRS. OF TIAONG INP TIME STARTED/ARRIVED AT SAID PLACE: 221410H Apr '85 SERVED TO: MRS. GLORIA UMALI MR. EMILIANO UMALI PERSON APPREHENDED/PROPERTY SEIZED/RECOVERED

Mrs. Gloria Umali 16 Aluminum Foils of Mr. Emiliano Umali Suspected Marijuana leaves TIME/DATE LEFT SAID PLACE: 221450H Apr '85 WITNESSES (sic) BY: 1. (Sgd) Reynaldo S. Pasumbal 2. (Sgd) Luisabel P. Punzalan 3. (Sgd) Arnulfo C. Veneracion 4. (Sgd) Isidro C. Capino Samples of the marijuana leaves confiscated were submitted to the PC Came Laboratory for examination. Capt. Rosalinda Royales of the PC crime Laboratory took the witness stand, testified and identified the marijuana submitted to her and in a written report which was marked as Exhibit "G" she gave the following findings: Qualitative examination conducted on the specimen mentioned above gave POSITIVE result to the tests fur marijuana. In Criminal Case No. 85-516, Francisco Manalo was charged of having in his possession Indian Hemp on April 5, 1985, in violation of Section 8, Article 11 of Republic Act 6425 as amended, otherwise as the Dangerous Drugs Act of 1972. The Court in rendering against him disposed the case as follows: In view of the foregoing, the Court hereby finds the accused Guilty beyond reasonable doubt of the crime of illegal possession of "Indian Hemp" penalized under Sec. 8 of Article 6425 (sic); as amended otherwise known as the Dangerous Drugs Act of 1972 and the Court hereby sentences him to suffer an imprisonment of two (2) years and four (4) months of prision correccional to six (6) years and one (1) day of Prision Mayor and to pay a fine of Six Thousand Pesos (P6,000.00). Let the period of detention of the accused be credited to his sentence. Accused never disputed the claim of Francisco Manalo that the marijuana found in his possession on April 5, 1985 in the municipality of Tiaong, Quezon was sold to him by the accused Gloria Umali. The defense also did not dispute the claim of the prosecution that in the investigation of Pierre Pangan, the police investigator

came to know that Gloria Umali was the source of the marijuana leaves which he used and smoked resulting in his present drug dependency. (Rollo, pp. 22-27) The appellant vehemently denied the findings of the lower court and insisted that said court committed reversible errors in convicting her. She alleged that witness Francisco Manalo is not reputed to be trustworthy and reliable and that his words should not be taken on its face value. Furthermore, he stressed that said witness has several charges in court and because of his desire to have some of his cases dismissed, he was likely to tell falsehood. However, the plaintiff-appellee through the Solicitor General said that even if Francisco Manalo was then facing several criminal charges when he testified, such fact did not in any way disqualify him as a witness. "His testimony is not only reasonable and probable but more so, it was also corroborated in its material respect by the other prosecution witnesses, especially the police officers." (Rollo, pp. 83-84) The appellant also claimed that the marked money as well as the marijuana were confiscated for no other purpose than using them as evidence against the accused in the proceeding for violation of Dangerous Drugs Act and therefore the search warrant issued is illegal from the very beginning. She stressed that there can be no other plausible explanation other than that she was a victim of a frame-up. In relation to this contention, the Solicitor General noted that it is not true that the evidences submitted by the prosecution were obtained in violation of her constitutional right against illegal search and seizure. Furthermore, the appellant contended that the essential elements of the crime of which she was charged were never established by clear and convincing evidence to warrant the findings of the court a quo. She also stressed that the court's verdict of conviction is merely based on surmises and conjectures. However, the Solicitor General noted that the positive and categorical testimonies of the prosecution witnesses who had personal knowledge of the happening together with the physical evidence submitted clearly prove the guilt beyond reasonable doubt of accusedappellant for violation of the Dangerous Drugs Act. Time and again, it is stressed that this Court is enjoined from casually modifying or rejecting the trial court's factual findings. Such factual findings, particularly the trial judge's assessment of the credibility of the testimony of the witnesses are accorded with great respect on appeal for the trial judge enjoys the advantage of directly and at first hand observing and examining the testimonial and other proofs as they are presented at the trial and is therefore better situated to form accurate impressions and conclusions on the basis thereof (See People v. Bravo, G.R. No. 68422, 29 December, 1989,180 SCRA 694,699). The findings of the trial court are entitled to great weight, and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged that the court below,

having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Alverez y Soriano, G.R. No. 70831, 29 July 1988, 163 SCRA 745, 249; People v. Dorado, G.R. No. L-23464, October 31, 1969, 30 SCRA 53; People v. Espejo, G.R. No. L27708, December 19, 1970, 36 SCRA 400). Hence, in the absence of any showing that the trial court had overlooked certain substantial facts, said factual findings are entitled to great weight, and indeed are binding even on this Court. Rule 130, Section 20 of the Revised Rules of Court provides that: Except as provided in the next succeeding section, all persons who can perceive, and perceiving can make known their perception to others may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. The phrase "conviction of a crime unless otherwise provided by law" takes into account Article 821 of the Civil Code which states that persons 91 convicted of falsification of a document, perjury or false testimony" are disqualified from being witnesses to a will." (Paras, RULES OF COURT ANNOTATED, Vol. IV First Ed., p. 44) Since the witness Francisco Manalo is not convicted of any of the above-mentioned crimes to disqualify him as a witness and this case does not involve the probate of a will, We rule that the fact that said witness is facing several criminal charges when he testified did not in any way disqualify him as a witness. The testimony of a witness should be given full faith and credit, in the absence of evidence that he was actuated by improper motive (People v. Melgar, G.R. No. 75268,29 January 1988, 157 SCRA 718). Hence, in the absence of any evidence that witness Francisco Manalo was actuated by improper motive, his testimony must be accorded full credence. Appellant's contention that she was a victim of a "frame-up" is devoid of merit. "Courts must be vigilant. A handy defense in such cases is that it is a frame-up and that the police attempted to extort from the accused. Extreme caution must be exercised in appreciating such defense. It is just as easy to concoct as a frame-up. At all times the police, the prosecution and the Courts must be always on guard against these hazards in the administration of criminal justice." (People v. Rojo, G.R. No. 82737, 5 July 1989, 175 SCRA 119) The appellant's allegation that the search warrant is illegal cannot also be given any merit. "Where marked peso bills were seized by the police as a result of the search made on the appellant, the admissibility of these marked peso bills hinges on the legality of the arrest and search on the person of the appellant" (People v. Paco, G.R. No. 76893, 27 February 1989, 170 SCRA 681). Since the search is predicated on a valid search warrant, absent any showing that such was procured maliciously the things seized are admissible in evidence.

Appellant argues that the lower court's verdict is based on surmises and conjectures, hence the essential elements of the crime were never established by clear and convincing evidence. Conviction cannot be predicated on a presumption or speculation. A conviction for a criminal offense must be based on clear and positive evidence and not on mere presumptions (Gaerlan v. Court of Appeals, G.R. No. 57876, 6 November 1989, 179 SCRA 20). The prosecution's evidence consisted of the testimony of witness Manalo and the law enforcers as well as the physical evidence consisting of the seized marked peso bills, the two (2) foils of marijuana purchased and the can containing sixteen (16) aluminum foils of dried marijuana. Credence is accorded to the prosecution's evidence more so as it consisted mainly of testimonies of policemen. Law enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. Tejada, G.R. No. 81520, 21 February 1989, 170 SCRA 497). Hence, in the absence of proof to the contrary, full credence should be accorded to the prosecution's evidence. The evidence on record sufficiently established that Umali gave two (2) foils of marijuana to witness Manalo for which she was given and received four (4) marked five peso (P5.00) bills, and fully supports conviction for drug pushing in violation of Section 4 Article II of the Dangerous Drugs Act. Thus, the Court has no option but to declare that the trial court did not err in finding, on the basis of the evidence on record, that the accused-appellant Gloria Umali violated Section 4, Article II of the Dangerous Drugs Act. Pursuant to recent jurisprudence and law, the case is covered by Section 4 of Republic Act No. 6425 as amended by Presidential Decree No. 1675, effective February 17, 1980, which raised the penalty for selling prohibited drugs from life imprisonment to death and a fine ranging from twenty to thirty thousand pesos (People v. Adriano, G.R. No. 65349, October 31, 1984, 133 SCRA 132) Thus, the trial court correctly imposed the penalty of life imprisonment but failed to impose a fine. ACCORDINGLY, the appealed decision is AFFIRMED with the modification that a fine of twenty thousand pesos (P20,000.00) be imposed, as it is hereby imposed, on the accused-appellant. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur. FIRST DIVISION

[G.R. No. 135022. July 11, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO DELA CRUZ, accused-appellant. DECISION DAVIDE, JR., C.J.: A man descends into the depths of human debasement when he inflicts his lechery upon a minor, and all the more when he imposes such lasciviousness upon a woman whose capacity to give consent to a sexual union is diminished, if not totally lacking. Such is the case of Jonalyn Yumang (hereafter JONALYN). Upon a complaint[1] dated 5 July 1996 signed by JONALYN with the assistance of her aunt Carmelita Borja, two informations were filed by the Office of the Provincial Prosecutor before the Regional Trial Court of Malolos, Bulacan, charging Bienvenido Dela Cruz (hereafter BIENVENIDO) with rape allegedly committed on 3 and 4 July 1996. The informations were docketed as Criminal Cases Nos. 1274-M-96 and 1275-M-96. The accusatory portion of the information docketed as Criminal Case No. 1275-M-96, which is the subject of this appellate review, reads: That on or about the 3rd day of July 1996, in the Municipality of Calumpit, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused [Bienvenido dela Cruz @ Jun] did then and there wilfully, unlawfully and feloniously with lewd design have carnal knowledge of one Jonalyn Yumang y Banag, a mentally deficient female person, against her will and without her consent. Contrary to law.[2] Upon arraignment on 14 October 1996, BIENVENIDO entered a plea of not guilty. [3] The cases were consolidated, and joint trial on the merits ensued thereafter. When JONALYN was presented as its first witness, the prosecution sought to obtain from the trial court an order for the conduct of a psychiatric examination on her person to determine her mental and psychological capability to testify in court. The purpose was that should her mental capacity be found to be below normal, the prosecution could propound leading questions to JONALYN. The defense, through Atty. Jesus M. Pamintuan, vigorously opposed the prosecutions manifestation. Nonetheless, the trial court allowed the prosecutor to conduct direct examination on JONALYN so that if in its perception she would appear to be suffering from mental deficiency, the prosecutor could be permitted to ask leading questions. JONALYN was then made to identify her signature in her sworn statement and to identify the accused, and was asked about her personal circumstances. Thereafter, noticing that JONALYN had difficulty in expressing herself, the trial court decided to suspend the proceedings to give the prosecution sufficient time to confer with her. [4] At the next hearing, the trial court allowed the prosecution to put on the witness stand Dr. Cecilia Tuazon, Medical Officer III of the National Center for Mental Health, Mandaluyong City. Dr. Tuazon testified that she conducted a psychiatric examination on JONALYN on 12 July

1996. She found that JONALYN was suffering from a moderate level of mental retardation and that although chronologically the latter was already 20 years of age (at the time of the examination), she had the mental age of an 8-year-old child under the Wechsler Adult Intelligence Scale. Dr. Tuazon also found that JONALYN could have attained a higher degree of intelligence if not for the fact that she was unschooled and no proper motivation was employed on her, and that she had the capacity to make her perception known to others. She, however, observed that she had to prompt JONALYN most of the time to elicit information on the sexual harassment incident. She then narrated that JONALYN was able to relate to her that she (JONALYN) was approached by a tall man named Jun-Jun who led her to a house that supposedly belonged to her cousin, and that Jun-Jun disrobed JONALYN and raped her twice.[5] After said testimony or on 11 March 1997, the trial court issued an order [6] allowing leading questions to be propounded to JONALYN in accordance with Section 10(c), Rule 132 of the Rules on Evidence.[7] Thus, JONALYN took the witness stand. She again identified her signature and that of her aunt on her Sinumpaang Salaysay. She also identified BIENVENIDO as the person against whom she filed a complaint for rape. She declared in open court that BIENVENIDO raped her twice inside the house of a certain Mhel located at Barangay Gatbuca, Calumpit, Bulacan. She stated that BIENVENIDO placed himself on top of her and inserted his private part into her womanhood.[8] Dr. Edgardo Gueco, Chief and Medico-Legal Officer of the Philippine National Police Crime Laboratory, Camp Olivas, Pampanga, testified that he examined JONALYN on 8 July 1996, and the results of the examination were indicated in his Medico-Legal Report.[9] He found that she was in a non-virgin state physically, as her hymen bore deep fresh and healing lacerations at 3, 8 and 11 oclock positions. He then opined that the hymenal lacerations were sustained a week before the examination and, therefore, compatible with the time the rapes were allegedly committed.[10] Carmelita Borja, aunt of JONALYN, testified that on 5 July 1996, she accompanied JONALYN to the Philippine National Police (PNP) Office in Calumpit, Bulacan, to lodge a complaint against BIENVENIDO. With them were JONALYNs mother Conchita Yuson and Barangay Councilman Roberto Dungo. Carmelita testified that in instituting this case, their family incurred expenses amounting to P30,000.[11] After the prosecution rested its case and formally offered its exhibits, the defense filed a motion for leave of court to file a demurrer to evidence, which was granted. Thus, the defense filed on 5 December 1997 a Demurrer to Evidence [12] on the following grounds: (a) That the court had no jurisdiction to take cognizance of the cases; and (b) The presumption of accuseds innocence had not even [ sic] been overcome by the prosecution due to the insufficiency of its evidence. Expounding its theory, the defense first admitted that it could have moved to quash the information but it did not because the complaint on which the information was based was on its face valid, it having been signed by JONALYN as the offended party. However, the

undeniable truth is that JONALYN had no capacity to sign the same considering her mental deficiency or abnormality. The assistance extended to JONALYN by her aunt Carmelita Borja did not cure the defect, as the enumeration in Article 344 of the Revised Penal Code of the persons who could file a complaint for rape is exclusive and successive and the mother of JONALYN was still very much alive. The defense also insisted on assailing the competency of JONALYN as a witness. It claimed that JONALYNs testimony, considering her mental state, was coached and rehearsed. Worse, she was not only asked leading questions but was fed legal and factual conclusions which she was made to admit as her own when they were in fact those of the prosecution. In its Order of 26 January 1998,[13] the trial court denied the Demurrer to Evidence and set the dates for the presentation of the evidence for the defense. However, BIENVENIDO filed a Motion for Judgment, stating in part as follows: [A]fter going over the Records and carefully analyzing the proceedings as well as meticulously evaluating the evidence presented and offered [by] the private complainant, in consultation with his parents, and assisted by undersigned counsel, [he] had decided to submit the cases for judgment without the need of presenting any evidence to explain his terse PLEA OF NOT GUILTY to the charges upon his arraignment. [14] Noting this new development, the trial court, in its Order of 17 February 1998, considered the case submitted for decision.[15] In its Joint Decision of 3 April 1998, [16] the trial court convicted BIENVENIDO of the crime of rape in Criminal Case No. 1275-M-96, but acquitted him in Criminal Case No. 1274-M-96 for insufficiency of evidence. While conceding that JONALYNs narration of how she was sexually abused by BIENVENIDO was not detailed, the trial court, nonetheless, concluded that it was candidly related by one who had the mental age of an 8-year-old child. The trial court was convinced that JONALYN was able to show in her own peculiar way that she was indeed raped by BIENVENIDO on 3 July 1996. Finally, the trial court ruled that BIENVENIDOs culpability was further bolstered by his choice not to offer any evidence for his defense despite ample opportunity to do so. Accordingly, it sentenced him to suffer the penalty of reclusion perpetua and to pay JONALYN the amount of P60,000 by way of civil indemnity. In his Appellants Brief,[17] BIENVENIDO asserts that the trial court committed the following errors: 1. ... in having taken the fatally defective criminal complaint for a valid conferment upon it of jurisdiction to try and dispose of said two (2) charges of rape. 2. ... in having accepted as competent the mentally deficient private complainant even without first requiring any evidence of her capacity as such a witness. 3. ... in having considered the narration read to the complaining witness from prepared statements and asked of her simply to confirm as true, as her own.

4. ... in having given full credence and weight to complainants conclusions of facts merely put to her mouth by leading questions of the prosecutor. 5. ... in having convicted the accused-appellant in Criminal Case No. 1275-M-96, but acquitting in Criminal Case No. 1274-M-96, on the basis of private complainants purported sworn versions supposedly given in both charges. BIENVENIDO reiterates the issues he raised in his Demurrer to Evidence. He assails the competency of JONALYN as signatory to the complaint she filed. He adds that the defect in the complaint was not cured by his failure to interpose a motion to quash nor by the assistance lent by JONALYNs aunt, which contravened Article 344 of the Revised Penal Code. Consequently, BIENVENIDO asserts that the trial court had no jurisdiction to try the case. BIENVENIDO also stresses the incompetency of JONALYN as a trial witness for the reason that the prosecution failed to prove her competency. Further, JONALYN was merely asked to affirm the legal and factual conclusions of the prosecution which evinced quite clearly the girls lack of comprehension of the court proceedings and the nature of her oath. Besides, her statements concerning the alleged sexual penetration were elicited a month after her initial offer as a witness, which reinforces the rehearsed and coached nature of her testimony. Finally, he wonders why he was convicted in Criminal Case No. 1275-M-96 but acquitted in Criminal Case No. 1274-M-96 when it was a joint trial and the evidence was the same. He insists that he should also be acquitted in the case at bar. In the Appellees Brief,[18] the Office of the Solicitor General (OSG) counters that the trial court had jurisdiction over the case, since the complaint and information filed were valid. JONALYNs mental retardation does not render her incompetent for initiating the prosecution of the crime committed against her and for testifying in court. If minors are allowed not only to initiate the prosecution of offenses under Article 344 of the Revised Penal Code and Section 5, Rule 110 of the 1985 Rules of Criminal Procedure, but also to testify under the Rules on Evidence, JONALYN, who had the mentality of an 8-year-old child, was competent to sign the criminal complaint and to be a witness in court. JONALYNs competency as a court witness was aptly proved when she was able to answer the leading questions asked of her as allowed by Section 10(c), Rule 132 of the Rules on Evidence. Moreover, the OSG asseverates that JONALYNs testimony on the fact of rape is corroborated by medical and ph ysical evidence. As to BIENVENIDOs quandary that he should be acquitted also in this case, it is convinced that he should have been convicted for two counts of rape, as JONALYN expressly testified that she was raped twice by BIENVENIDO. Finally, the OSG seeks an award of moral damages in the amount of P50,000 for JONALYN, as well as a reduction of the award of civil indemnity to P50,000 in conformity with current jurisprudence. We shall discuss the issues in seriatim.

I.

Validity of the Complaint for Rape

We agree with the disputation of the OSG that the trial court validly took cognizance of the complaint filed by JONALYN. The pertinent laws existing at the time the crimes were committed were Article 344 of the Revised Penal Code (prior to its amendment by R.A. No. 8353[19] otherwise known as The Anti-Rape Law of 1997, which took effect on 22 October 1997[20]) and Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure. Article 344 of the Revised Penal Code provides: Article 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. -- The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure states: Section 5. Who must prosecute criminal actions.All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when there is no fiscal available, the offended party, any peace officer or public officer charged with the enforcement of the law violated may prosecute the case. This authority ceases upon actual intervention of the fiscal or upon elevation of the case to the Regional Trial Court. The offenses of seduction, abduction, rape or acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. In case the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents, or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents or guardian may file the same. The right to file the action granted to the parents, grandparents or guardians shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the immediately preceding paragraph.

A complaint of the offended party or her relatives is required in crimes against chastity out of consideration for the offended woman and her family, who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. The law deems it the wiser policy to let the aggrieved woman and her family decide whether to expose to public view or to heated controversies in court the vices, fault, and disgraceful acts occurring in the family.[21] It has been held that [w]hen it is said that the requirement in Article 344 (that there shall be a complaint of the offended party or her relatives) is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case. The courts jurisdiction is vested in it by the Judiciary Law.[22] The complaint in the instant case has complied with the requirement under the Revised Penal Code and the Rules of Criminal Procedure, which vest upon JONALYN, as the offended party, the right to institute the criminal action. As signed by JONALYN, the complaint started the prosecutory proceeding. The assistance of JONALYNs aunt, or even of her mother, was a superfluity. JONALYNs signature alone suffices to validate the co mplaint. We agree with the OSG that if a minor under the Rules of Court can file a complaint for rape independently of her parents, JONALYN, then 20 years of age who was found to have the mentality of an 8-year-old girl, could likewise file the complaint independently of her relatives. Her complaint can be rightfully considered filed by a minor. The overriding intention of BIENVENIDO is to challenge the validity of the complaint by assailing the competency of JONALYN to file the complaint. But even he admits in his Demurrer to Evidence that the complaint is proper and valid on its face for which reason he did not move to quash the information. Thus, even he admits and recognizes the futility of his argument.

II.

Competence of JONALYN to Testify

The determination of the competence of witnesses to testify rests primarily with the trial judge who sees them in the witness stand and observes their behavior or their possession or lack of intelligence, as well as their understanding of the obligation of an oath.[23] The prosecution has proved JONALYNs competency by the testimony of Dr. Tuazon. The finding of the trial court, as supported by the testimony of Dr. Tuazon that JONALYN had the understanding of an 8-year-old child, does not obviate the fact of her competency. Its only effect was to consider her testimony from the point of view of an 8-year-old minor. Even a mental retardate is not, per se, disqualified from being a witness.[24] JONALYN, who may be considered as a mental retardate but with the ability to make her perceptions known to others, is a competent witness under Section 20 of Rule 130 of the Rules on Evidence. [25]

JONALYNs competency is also better established in the answers she gave under direct examination relative to the harrowing defilement she suffered in the hands of BIENVENIDO, thus: Q A And the nature of your complaint was that you were abused or you were raped by the herein accused Bienvenido de la Cruz y Santiago, is that correct? Yes, sir. ... Q A Q A And do you know in what place where you raped by the accused, Bienvenido dela Cruz y Santiago? Inside the house, sir. Whose house? In the house of Mhel, sir.[26] Q A How many times were you raped by the herein accused Bienvenido dela Cruz y Santiago alias Jun Jun? Twice, sir.

Court: Where? Fiscal: Where? Witness: On top of the wooden bed, sir.[27] Q You said you were raped twice by the herein accused, Bienvenido dela Cruz alias Jun-Jun on a papag inside the house of Mhel at Barangay Gatbuca, Calumpit, Bulaca n, how did Jun Jun the herein accused rape[] you? On the first time?

Court: A Q A

He layed [sic] me to bed, sir. After you were layed [sic] on the bed what happened next? He went on top of me, sir.[28]

Last time, you stated that the herein accused whom you called Jun laid you on top of a bed and after that, he went on top of you. My question is, when he went on top of you, what did he do to you, if any? Pumaloob sa akin.[29]

A:

Q A Q

Now, when the accused, which you called Jun, pumaloob sa iyo, what did you feel at that time? I felt a hard object, sir. Now since you said it [was] a hard object, you could now tell the Court, what that hard object [was]? I cannot remember.[30]

Public Prosecutor: Q When you said the last time around, you were asked about, what you mean by pumaloob siya sa akin and then you said that there was a hard object inserted and after that, the follow-up question was asked on you, you said you cannot remember, what is that hard object, what do you mean when you say I cannot remember?

Atty. Pamintuan: Leading. Court: Witness may answer, subject to your objection. Witness: His private part was inserted in my private part, sir. [31] Court: Witness: A Yes, sir. But there was an answer a while ago. Witness may answer.

Public Pros.: Q A And, when you say he did the same to you, he inserted his penis to your vagina? Yes, sir. No further question, Your Honor.[32]

Public Pros.:

III.

Credibility of JONALYN as a Witness

The foregoing narrative has established not only JONALYNs competency but also her credibility. Moreover, considering her feeble mind, she could not have fabricated or concocted her charge against BIENVENIDO. This conclusion is strengthened by the fact that no improper motive was shown by the defense as to why JONALYN would file a case or falsely testify against BIENVENIDO. A rape victims testimony as to who abused her is credible where she has absolutely no motive to incriminate and testify against the accused. [33] It has been held that no woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter permit herself to be subjected to a public trial if she is not motivated solely by the desire to have the culprit apprehended and punished. [34] We, therefore, affirm the trial courts decision to lend full credence to the testimony of JONALYN on the circumstances of the rape, thus: In so few a word, complainant has made herself clear about the sexual molestation she suffered in the hands of the accused. Plain and simple her testimony may have been, unembellished, as it is, with details, yet, it is in its simplicity that its credence is enhanced. Certainly, we cannot expect complainant, in her present state of mind, to come out with a full account of her misfortune with all its lurid details. That, to this Court, is simply beyond the reach of her enfeebled mind. She came to talk on her sad plight from the viewpoint of an 8-year-old child, and she must, by all means, be understood in that light. [35] Absent any cogent reason warranting a disturbance of the findings of the trial court on the credibility and competency of JONALYN, this Court has to give these findings utmost respect, if not complete affirmation. Settled is the rule that the trial courts evaluation of the testimonies of witnesses is accorded the highest respect, for it has an untrammeled opportunity to observe directly the demeanor of witnesses on the stand and, thus, to determine whether they are telling the truth.[36]

IV.

Propriety of Propounding Leading Questions to JONALYN

We likewise agree with the trial courts conclusion that JONALYNs testimony should be taken and understood from the point of view of an 8-year-old child. JONALYNs testimony is consistent with the straightforward and innocent testimony of a child. Thus, the prosecutions persistent, repetitious and painstaking effort in asking leading questions was necessary and indispensable in the interest of justice to draw o ut from JONALYNs lips the basic details of the grave crime committed against her by BIENVENIDO. The trial court did not err in allowing leading questions to be propounded to JONALYN. It is usual and proper for the court to permit leading questions in conducting the examination of a witness who is immature; aged and infirm; in bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated; terrified; timid or embarrassed while on the

stand; lacking in comprehension of questions asked or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith. [37] The leading questions were neither conclusions of facts merely put into the mouth of JONALYN nor prepared statements which she merely confirmed as true. The questions were indeed carefully phrased and sometimes based on her Sinumpaang Salaysay to make JONALYN understand the import of the questions. In the same vein, the prosecutions referral to JONALYNsSinumpaang Salaysay to refresh her memory was also reasonable. The purpose of refreshing the recollection of a witness is to enable both the witness and her present testimony to be put fairly and in their proper light before the court. [38] Thus, JONALYNs behavior merely conformed to Dr. Tuazons clinical and expert observation that JONALYN had to be continuously and repetitiously prompted so that she could answer and recount a terrible experience. JONALYNs constant eyeball f ixature towards her aunt and mother does not by itself indicate coaching, in the face of a dearth of other evidentiary bases that the latter did coach her. There was nothing in the behavior of JONALYN which was indicative of her failure to understand the import of the trial proceedings. Her identification of BIENVENIDO as her assailant is quite telling on how simple, yet unassuming, her grasp of the situation was. Thus: Stenographer: Reading back the question. Q Because you understand that this was explained to you, I would like to read to you particularly question number 3. Tanong: Sino naman ang ibig mong idemanda? Answer: Si Bienvenido dela Cruz y Santiago alias Jun Jun po. Was this explain[ed] to you? Atty. Pamintuan: I stand correct[sic]. Witness: Yes, sir. Fiscal: (to the witness) Q Now, this Bienvenido dela Cruz y Santiago alias Jun Jun, which was the person whom you are filing the complaint of [sic], will you kindly look around to this Court and tell us whether or not he is inside. Yes, sir. Would you mind to point him?

A Q

Interpreter: Witness pointing to a man wearing orange T-shirt and when asked his name answered Bienvenido dela Cruz.[39]

V.

Sufficiency of Prosecutions Evidence

It is, therefore, beyond doubt that JONALYNs lone testimony, which was found to be credible by the trial court, is enough to sustain a conviction.[40] At any rate, medical and physical evidence adequately corroborated JONALYNs testimony. Time and again we have held that the laceration of the hymen is a telling, irrefutable and best physical evidence of forcible defloration.[41] On the basis of the foregoing, we agree with the trial courts conviction of BIENVENIDO under Criminal Case No. 1275-M-96. His acquittal under Criminal Case No. 1274-M-96 is, at this point, beyond the review powers of this Court. Since the information charges BIENVENIDO with simple rape only and no other modifying circumstances has been proved, the penalty of reclusion perpetua, which is the lesser of the penalties prescribed by Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, was correctly imposed by the trial court. We rectify the error of the trial court in granting JONALYN the amount of P60,000 as civil indemnity. In conformity with current jurisprudence, we hereby reduce it to P50,000.[42] An award of moral damages in the amount of P50,000 is also just under the circumstances.[43] WHEREFORE, the decision of the Regional Trial Court, Branch 11, Malolos, Bulacan, in Criminal Case No. 1275-M-96 finding accused-appellant BIENVENIDO DELA CRUZ guilty of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the modification that accused-appellant is ordered to pay the victim JONALYN YUMANG civil indemnity in the reduced amount of P50,000 and moral damages in the amount of P50,000. Costs de oficio. SO ORDERED. Vitug, Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

[1] [2]

Original Records (OR), 190-191. OR, 1. THIRD DIVISION

[G.R. No. 114007. September 24, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GONZALO GALAS, JOSUE GALAS, NOE GALAS, DIMAS ACMA alias "DEWAY", and MAXIMO DELGADO, accused-appellants. DECISION DAVIDE, JR., J.: Federico Gamayon, a farmer and resident of Apoaporawan, Palawan, died on 23 December 1985 in Tinagong Dagat, Narra, Palawan, due to six hack wounds and two stab wounds inflicted on various parts of his body. Held to account for his death were the accused herein. The prosecution was commenced by the filing of a criminal complaint for murder in the Municipal Trial Court (MTC) of Narra, Palawan. The complaint was then amended to charge the accused with the lesser offense of homicide. [1] They were released by the said court upon the approval of their bail bonds and the record of the case was forwarded to the Office of the Provincial Fiscal of Palawan. In his resolution of 7 April 1986,[2] then Provincial Fiscal Aurelio Trampe recommended the filing of an information for murder due to the presence of the qualifying circumstances of evident premeditation and abuse of superior strength. On 8 April 1986, an Information[3] was filed with the Regional Trial Court (RTC) of Palawan by Provincial Fiscal Trampe charging the accused with the crime of murder committed as follows: That on or about the 23 rd day of December, 1985 at Barangay Tinagong Dagat Municipality of Narra, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating together and mutually helping one another with intent to kill, with evident premeditation and treachery and by the use of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault, hack and stab with their deadly weapons one Federico Gamayon hitting him in different vital parts of his body thereby inflicting upon him several injuries which was the direct and immediate cause of his instantaneous death. Contrary to law and committed with aggravating circumstances of evident premeditation and use of superior strength. No bond was recommended for the temporary liberty of the accused. The case was docketed as Criminal Case No. 6233 and initially assigned to Branch 48 of the said court. On 10 February 1988, the court, per Judge Singuat Guerra, granted the motion of 9 February 1987 filed by Third Assistant Fiscal Reynaldo R. Guayco with the approval of Provincial Fiscal Eustaquio Z. Gacott, Jr., for the cancellation of the bail bonds of the accused and the

issuance of a warrant for their arrest in view of the filing of the information for murder which recommended no bond for them.[4] On 30 October 1987, Judge Guerra ordered the case archived and directed the issuance of an alias warrant of arrest since no return was made of the warrant of arrest issued on 10 February 1987. Two more alias warrants of arrest were subsequently issued, but no returns were likewise made. Thus, on 12 July 1988, Judge Guerra directed the Station Commander of Narra, Palawan, to show cause and explain why he should not be held for indirect contempt. [5] On 15 December 1988, accused Gonzalo Galas was turned over to the court.[6] Whether he voluntarily surrendered or was arrested is unclear from the record. Since the other accused remained outside the jurisdiction of the court and the warrants for their arrest had not been returned, Judge Guerra, on 12 July 1988, again directed the Station Commander of Narra, Palawan, to explain why he should not be held for indirect contempt. [7] On 9 May 1989, with Judge Angel Miclat as the new presiding Judge of Branch 48, accused Gonzalo Galas was finally arraigned. As he entered a plea of not guilty, the court scheduled the pre-trial and initial trial of the case, as against him, on 5 and 6 July 1989. The court further issued another alias warrant of arrest for the other accused. [8] On 4 October 1989, with another judge, Judge Amor A. Reyes, presiding over Branch 48, the trial court ordered the forfeiture of the bail bonds of Gonzalo Galas' co-accused and granted counsel for the accused five days to file his announced petition for reinvestigation and the prosecution to resolve it within twenty days from receipt. [9] The petition[10] was filed with the trial court on6 October 1989 and the latter referred it to the Provincial Prosecutor for resolution within twenty days.[11] After the reinvestigation, First Assistant Provincial Prosecutor Sesinio B. Belen, with the approval of Acting Provincial Prosecutor Clarito Demaala, filed a Motion to Admit Amended Information which now charges the accused with Homicide. As ground for the downgrading of the offense charged, Prosecutor Belen alleged that the reinvestigation disclosed no evidence of evident premeditation nor treachery, and the victim even had the opportunity to wound accused Gonzalo Galas.[12] On 29 January 1990, Criminal Case No. 6233 was transferred to Branch 47 of the RTC of Palawan, which was then presided by Judge Eustaquio Z. Gacott, Jr., former Provincial Fiscal of Palawan. On 22 March 1990, accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado filed a motion to lift the order of arrest and of the forfeiture of their bail bonds. [13] On 23 March 1990, Branch 47 of the RTC, per Judge Gacott, denied for lack of merit the prosecution's motion to admit the Amended Information, [14] and arraigned accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado on the basis of the information for murder. Each entered a plea of not guilty and trial on the merits ensued, commencing on 14 May 1990 and ending on 13 July 1993.[15] The prosecution established the following facts:

On 23 December 1995, at around 9:00 p.m., Federico Gamayon and his 15-year old son Crisanto, who was riding on a carabao, and 6-year old nephew Joemar,[16] who was riding on the sled, were on their way home to Tinagong Dagat from Sandoval, Narra, Palawan, where they had sold copra to a certain Gabileo. When they were near the house of accused Gonzalo Galas, Federico was called by Gonzalo. When Federico approached Gonzalo, the latter suddenly hacked Federico with a bolo.[17] Federico fell to the ground,[18] then accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado "ganged up" on Federico, according to Crisanto;[19] or "helped each other in mauling" Federico, according to Joemar. [20] Josue Galas hacked Federico with a bolo, while Noe Galas, Dimas Acma, and Maximo Delgado were armed with pieces of wood.[21] Federico was unable to fight back; he could not even unsheath his bolo from its scabbard.[22] Crisanto Gamayon could not do anything to help his father because he was afraid; moreover, the accused ran after him.[23] Crisanto ran to his uncle for help, but the latter was not in his house.[24] Crisanto did not return to the crime scene until the next day [25] and after the incident was reported to the police authorities. Federico lay there until the next day when the police and Dr. Dominador Hubo, the municipal health officer, arrived to transport and examine Federico's cadaver. Dr. Hubo conducted the autopsy and his findings are quoted verbatim:[26] The cadaver in the state of rigor mortiz [sic] wearing red jacket and red short pants. The cadaver is covered with a twig and leaves of cacawate tree and a small plastic canvass in a right side double up position. Several blood scattered the water where he is laying and a dry place. The cadaver is located approximately 200 yards from the house of Mr. Galas. Autopsy findings: 1. Hack wound 8 inches in length, 3 inches deep running from the left side to the back of the neck, severing the 8th cervical. 2. Hack wound 6 inches in length, 3 inches in deep [sic] one inch above the first wound, severing the 4th cervical vertebrae. 3 . Hack wound 6 inches in length, 2 inches in deep [sic], 2 inches above the second wound, severing the 2nd cervical vertebrae. 4. Hack wound 5 inches in length, 2 inches in deep [sic] severing the left parietal bone. 5. Stab wound 2 inches in length left infra mammary area, perching the left thoraxic cavity and lung. 6. Hack wound 4 inches in length 2 inches in deep [sic], right arm.

7. Stab wound, one inch in length right and left inguinal area, perching the abdominal cavity. 8. Hack wound, 3 inches in length, 2 inches in deep [sic], anteromedial right leg. Dr. Hubo opined that the cause of death of Federico was: Cardio respiratory arrest secondary to -1. Multiple hack and stab wound [sic]. 2. Internal and external hemorrhage[27] Dr. Hubo declared that he did not find any contusions nor abrasions on Federico's body as it was covered with mud caused by occasional showers. [28] As to the accused's motive, Crisanto intimated that Gonzalo was angry because Federico demanded payment from Gonzalo for hiring his carabao [29] for one year,[30] with the payment supposed to be in kind: ten sacks of palay. [31] Each of the accused had a different version of what transpired. Accused Gonzalo Galas claimed that on 23 December 1985 at around 9:00 p.m., he was twenty meters away from his house in Sandoval, Narra, Palawan, helping a baby carabao nurse from its mother. He was then called and challenged to a fight by Federico Gamayon, and when he approached Federico, the latter stabbed him with a bolo. He grabbed his bolo and used it to defend himself. He retreated; but Federico still hit him. They hacked each other. Federico fell; Gonzalo went home to ask for help to get to the doctor. He was brought to the doctor by Maximo Delgado and Joel Buncag. The medical certificate issued to him (Exhibit "1") by the doctor indicates that he was wounded on the right arm and on the left part of his abdomen. According to Gonzalo, nobody witnessed the fight and nobody helped him fight Federico. He asserted that he had no previous quarrel with Federico and that the latter was drunk that night.[32] On their part, accused Josue and Noe Galas declared that on the date and time Federico was killed, they were in Tigsiapo, Apu-aporaoan, Aborlan, Palawan, which is five kilometers away from the scene of the crime, where they were hauling palay for Sergio Gabileo. They came to know of the incident only the day after it happened." [33] Accused Maximo Delgado testified that on 23 December 1985 at 9:00 p.m., he was in his house in Tinagong Dagat, Narra, Palawan, [34] about half a kilometer away from Gonzalo's home. He was summoned by Gonzalo's wife and one Joel Buncag to help bring Gonzalo to the hospital. He denied having inflicted any injury upon Federico.[35] Accused Dimas Akma testified that on 23 December 1985 at 9:00 p.m. he was at Sandoval, Narra, Palawan, at the house of one Decena which is approximately three kilometers away from

the scene of the crime. At that time they had just finished threshing palay for Sergio Gabileo and were roasting chicken for a little get-together.[36] The accused also presented corroborating witnesses, viz., (a) Joel Buncag, who said he saw Federico hack Gonzalo; and that the two eyewitnesses, Crisanto Gamayon and Joemar Deocadiz, as well as the four other accused were not at the scene of the crime when the killing occurred; however, Maximo Delgado arrived to help bring Gonzalo to the hospital; [37] (b) Policarpio Gabello, who corroborated the testimony of Maximo Delgado who had said that his only participation was to help bring Gonzalo to the hospital for treatment and that of Dimas Akma who had said that he was in the house of one Decena at the time of the killing; [38] and (c) Sergio Gabileo, who corroborated the testimonies of accused Josue Galas and Noe Galas who earlier testified that they were on his farm hauling palay on the day of the killing and that the two slept in his house that night.[39] In its decision dated 23 August 1993,[40] the trial court found all the accused guilty beyond reasonable doubt of the crime of murder as charged, and rendered judgment as follows: WHEREFORE, premises considered, the Court hereby holds that the prosecution has proven the guilt of the accused Gonzalo Galas, Noel Galas, Josue Galas, Maximo Delgado and Dimas Akma beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code for having mutually helped, connived and conspired with each other in killing the victim, Federico Gamayon with treachery, evident premeditation and the use of superior strength. They are, therefore, sentenced each to suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs of the victim the sum of P150,000.00 (orP30,000.00 each accused) as actual, moral and exemplary damages, with costs. With this conviction that makes the accused herein maximum security prisoners, they are hereby ordered shipped immediately to the national penitentiary, Muntinlupa, Metro Manila, to serve their sentence there. The accused seasonably filed their notice of appeal and in their Appellants' Brief they impute upon the trial court the commission of the following errors: I THE TRIAL COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LOSS OF JURISDICTION IN RELYING ENTIRELY ON THE MANIFESTLY PERJURED TESTIMONY OF THE TWO SUPPOSED EYEWITNESSES FOR THE PROSECUTION AND IN DISREGARDING EVIDENCE FAVORABLE TO THE ACCUSED; II THE TRIAL COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LOSS OF JURISDICTION IN NOT ACCORDING ACCUSED THEIR CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT AND TO AN IMPARTIAL TRIBUNAL.[41]

In the first assigned error the accused make it appear that the relationship between the deceased and the two main witnesses diminishes the potency of their testimony. Such emphasis is misplaced. This Court has held in a number of cases that relationship between the witnesses and the deceased does not automatically impair the credibility of the former.[42] We have likewise held that a witness' relationship to a victim, far from rendering his testimony biased, would even render it more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit. [43] They have a definite stake at seeing, the guilty person brought before the courts so that justice may be served.[44] It is not to be lightly supposed that relatives of the victim would callously violate their conscience to avenge the death of a dear one by blaming it on persons who are in fact innocent of the crime.[45] They also put in issue the age of one of the main witnesses, Joemar Deocadiz, who was five years old when he allegedly witnessed the killing. It must be stressed that Joemar's age does not disqualify him as a witness. Section 20, Rule 130 of the Rules of Court provides that all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. The exceptions thereto are found in the succeeding Section 20 and, insofar as children are concerned, only those whose mental maturity is such so as to render them incapable of perceiving the facts respecting which they are examined and of relating truthfully are disqualified. It is thus clear that any child, regardless of age, can be a competent witness if they meet the following criteria: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. [46] The accused urge us to give no weight to Joemar's testimony because of its unreliability; they claim that he could not even remember the month and the year when the incident happened. A close scrutiny of his testimony discloses, however, that Joemar was clear on the facts he observed surrounding the death of Federico which, according to him took place on a date "nearing Christmas."[47] Since the date of Federico's death was undubitably established to be 23 December 1985, which was, indeed, "nearing Christmas," Joemar's approximation was sufficient. The accused also harp on Crisanto Gamayon's credibility on the ground that if he were really there, he would have unquestionably helped his father instead of merely standing still and simply gaping at the latter's killing by five men and returning to the scene only on the following day. Crisanto's testimony that he was afraid [48] sufficiently refutes this objection. Fear has been known to render people immobile, if not useless, in some life-anddeath situations. Crisanto and Joemar left Federico's body overnight at the scene. of the crime because darkness had fallen and fear gripped them. Under the circumstances, the 16-year old Crisanto and the 5-year old Joemar could not be expected to act like adults, in full possession of their mental emotional, and psychological faculties. In the second assigned error, the accused insist that Gonzalo Galas alone killed Federico Gamayon in self-defense; and assuming arguendo that self-defense was not found to be satisfactorily established, an impartial tribunal could not but rule that the crime committed was not murder, but only homicide.

In its Appellee's Brief filed by the Office of the Solicitor General, the People agree with the trial. court except as to its order directing each of the accused to pay P30,000.00 to the heirs of the victim as indemnity, which, it submits, is not in accord with Article 110 of the Revised Penal Code and prevailing jurisprudence on the matter. They should be held solidarity liable in the amount ofP50,000.00 pursuant to People vs. Macam.[49] We have no doubt whatsoever that prosecution witnesses Crisanto Gamayon and Joemar Deocadiz were with Federico Gamayon on that fateful evening of 23 December 1985. But, whether their testimony given only after the lapse of five years presented an authentic picture of what actually happened is an entirely different matter, especially as regards the accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado whose alibis have, nevertheless, to be rejected in light of their positive identification by Crisanto and Joemar. It is doctrinally settled that alibi cannot prevail over and is worthless in the face of the positive identification by prosecution witnesses.[50] Our meticulous scrutiny: of the evidence discloses that accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado were not with accused Gonzalo Galas when the latter and Federico Gamayon met for the first time. They arrived at the scene of the incident after accused Gonzalo Galas had hacked Federico with a bolo and the latter had fallen. Then and there they "ganged up" (according to Crisanto) or "mauled" (according to Joemar) Federico. Thus, on direct examination, Crisanto testified: PROSECUTOR DELOVINO: xxx Q You said you were in that place, what happened in that place? A Gonzalo Galas suddenly called my father, Ma'arn.

Q What did your father do after he was called by Gonzalo Galas? A He went near Gonzalo Galas and suddenly he was hacked.

COURT: Q Who hacked your father? A Gonzalo Galas, Your Honor. xxx PROSECUTOR DELOVINO: Q When he was hacked by Gonzalo Galas, what happened next? A He was ganged up by the companions of Gonzalo Galas. xxx Q You. said that after your father was hacked he was ganged up by the companions of Gonzalo Galas, who ganged up on him?

Josue Galas, Noe Galas, Maximo Delgado and a certain alias Dimay. xxx

COURT: Q You said that these people ganged up on him, what do you mean by that? A Gonzalo Galas used a bolo in hacking my father; also Josue Galas; Noe Galas, Maximo Delgado and alias Dimay were bringing pieces of wood, each of them. [51]

That Gonzalo Galas' co-accused participated only after Federico had already fallen or was already lying on the ground was further elicited by the trial court from Crisanto, thus: COURT: Q Did your father not shout for help? A No, sir.

Q Who actually killed him? A Gonzalo Galas, Your Honor.

Q So, when Gonzalo Galas hacked him, he was already dead? A No, Sir, because he was also being clubbed by the other accused. Yes, Your Honor.[52]

Q The other accused was already clubbing him when he was already lying down? A

On additional cross-examination by the defense counsel, Crisanto even admitted that Gonzalo had already hacked Federico three times before the latter fell to the ground and that it was after the fall that he was attacked by Gonzalo's co-accused. Thus: ATTY. RUELO: Q How many seconds elapsed after the start of the incident before your father fell to the ground? A He fell down after three hacks, Sir.

Q I said seconds. A He fell down immediately.

Q After he fell only the accused went near your father and nobody else? A Yes, Sir. xxx Q And you said that the incident took so long and most of the time spent was when your father was already lying down on the ground?

Yes, Sir.[53]

This answer prompted the court to ask: Q Was it possible that your father was already dead when he fell and he was still being clubbed? to which, Crisanto answered: A It was possible, Your Honor.[54]

Joemar Deocadiz corroborated Crisanto's testimony that it was only after Federico had fallen that Gonzalo's co-accused attacked Federico. However, contrary to Crisanto's claim, Joemar asserted that Federico fell after he was hacked twice by Gonzalo. Thus: PROSECUTOR DELOVINO: Q How many times was Federico Gamayon hacked by Gonzalo Galas? A Twice, Ma'am.

Q Where was Federico Gamayon hit? A On the right neck. (As demonstrated by the witness).

Q And where else was he hit? A On the right side of the head, Ma'am. (As demonstrated by the witness) xxx Q What happened to Federico Gamayon? A He fell down, Ma'am.

Q After Federico Gamayon fell down, what happened next? A They helped each other in mauling him. Dimay, Noe, and Ming.[55]

Q Who mauled him? A

The "mauling" was explained by Joemar to mean "clubbing" with the use of wood. Thus: PROSECUTOR DELOVINO: Q You said that Federico Gamayon was ganged up or mauled by these accused whom you have just identified. How did they gang up on Federico Gamayon? A They clubbed Federico Gamayon. Wood, Ma'am.[56]

Q With what weapon? A

Whether Gonzalo had hacked Federico - thrice according to Crisanto or twice according to Joemar -- before Federico had fallen, the fact remains that it was after that fall when Gonzalo's co-accused arrived to "maul" or "club" Federico. Assuming that, indeed, Federico was "mauled" or "clubbed," did accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado succeed in inflicting any injury on Federico Gamayon? If full credit is to be given to Crisanto and Joemar, the answer would be in the affirmative. Unfortunately, there is no convincing evidence that proves that the wounds sustained by Federico Gamayon were inflicted by two persons with the use of two different weapons to justify a conclusion that anyone of Gonzales' co-accused also stabbed Federico with the use of another weapon. Dr. Hubo was uncertain as to the first. He merely stated that they could have been caused by one or two persons. Thus: FISCAL DELOVINO: Q Doctor, with all these injuries, could you tell us how many persons inflicted those injuries? xxx A By the manner of the wounds and the size of the wounds, they were caused by one or two persons.[57]

As to the second, Dr. Hubo admitted on cross-examination the possibility that only one weapon was used. Thus: ATTY. AUSTRIA: xxx Q Is there a possibility that there is only one instrument that was used by the assailant in inflicting this kind of injuries to the victim? A Yes, sir.

Q Now, if that bladed instrument particularly say for example a bolo, Doctor, which was used by the assailant in hacking the victim was used also by him in stabbing the victim, could the victim also sustain stabbed [sic] wounds, similar stabbed [sic] wounds as appearing in this autopsy report? A If that bolo is so thin and the size of the bolo is 2 inches, that is possible.

Q So, Doctor, [y]ou will agree with me that it is possible that only one bladed instrument or bolo was used in inflicting all these injuries by the assailant to the victim? A It is possible if the bladed instrument is pointed and the size of 2 inches.

Q That is also your basis in stating that those injuries could have been caused by only one or two persons, isn't it?

Yes, sir.[58]

And on cross-examination by another defense lawyer, Dr. Hubo emphatically declared that only one weapon was used in inflicting the wounds on Federico. Thus: ATTY. DE LOS REYES: I will repeat for emphasis, your Honor. Q Do you agree that only one weapon could have been used in inflicting all the wounds? A Yes, sir.[59]

There is, as well, no evidence that the "mauling" or clubbing" by Gonzalo Galas' co-accused had produced any injury on any part of Federico's body. Dr. Hubo explained that he failed to detect any contusions nor abrasions because the cadaver was covered with mud due to occasional showers.[60] The People suggest, however, that the failure of Dr. Hubo to detect the contusions or abrasions does not mean that Federico did not sustain any injury from the mauling or clubbing.[61] This is plain speculation which finds no support in the rule on evidence in criminal cases. Furthermore, there is no evidence on record that Gonzalo Galas was with his co-accused when he called Federico Gamayon, or that all the accused arrived simultaneously at the place where Federico was hacked by Gonzalo. While Gonzalo's co-accused were seen at the scene of the crime by Crisanto and Joemar, no clear and convincing evidence can support a conclusion that the said co-accused were able to inflict any injury - either a stab or hack wound with the use of a bolo, or contusion, abrasion, or hematoma with the use of pieces of wood - on Federico. There is, as well, absolutely no evidence of conspiracy among Gonzalo and his coaccused as to make each of the latter equally liable for all the acts of Gonzalo under the doctrine that once conspiracy is established the act of one is the act of all.[62] Crisanto and Joemar may have thus miscomprehended or misappreciated the sequence of events after the arrival of Gonzalo's co-accused. We cannot fully agree with the trial courts' unqualified reliance on the testimonies of Crisanto and Joemar, nor cast our imprimatur on its assessment of the said witnesses' credibility pursuant to the rule that the issue of credibility is addressed to the trial court since it heard the witnesses and observed their deportment and manner of testifying during the trial.[63] For one, the trial court overlooked the foregoing facts, viz., infliction of the wounds by one person with the use of one weapon, and the absence of any injury caused by the mauling or clubbing. Excepted from the rule on the binding character of the trial court's assessment of credibility of witnesses are instances when trial courts have overlooked, misapplied, and misinterpreted facts and circumstances of great weight and value which would affect the result of the case.[64] For another, Judge Gacott, who tried the case, heard the witnesses, and rendered the decision, cannot be said to have possessed the cold neutrality of an impartial judge. As noted early on in this ponencia, he approved, in his capacity as the Provincial Fiscal, the motion of Third Assistant Provincial Fiscal Reynaldo R. Guayco to cancel the bail bonds of the accused and

to issue the warrant of their arrest[65] in view of the filing of the information for murder which recommended no bond for the accused.[66] As such, Judge Gacott, as the then Provincial Fiscal, was deemed to have concurred with the view of Fiscal Guayco that the evidence of guilt of the accused in this case was strong. In light of the presumption of regularity in the performance of official duty,[67] he must have read the supporting evidence, such as the sworn statements of Crisanto Gamayon and Joemar Deocadiz. Finally, after the case was transferred from Branch 48 to his branch - Branch 47 - Judge Gacott denied the prosecution's motion to admit an amended information charging the accused with the lesser offense of homicide. [68] Such acts merely evinced his belief in the trustworthiness of the testimony of Crisanto and Joemar and an impression of prejudgment is thus unavoidable. Under these circumstances, it was discretionary upon Judge Gacott to voluntarily inhibit himself pursuant to Section 1(2), Rule 137 of the Rules of Court, [69] and returned the case to Branch 48 where it originated. However, while Judge Gacott's voluntary inhibition would have been preferable, it cannot be said that his failure caused substantial prejudice to the accused. Initially, let it be clear that Judge Gacott's previous participation in the case as Provincial Fiscal was not raised either before us nor the court a quo. On this score, it has been held: [T]he disqualification of a judge is not a matter that affects his jurisdiction and power to act such as to render his decision null and void, so much so that failure on the part of a party, to timely interpose such an objection of disqualification prior to the decision has been held to be a fatal obstacle to raising such objection on appeal. In Government of the Philippines vs. Abella [49 Phil. 374-378], we held: ... The attorneys for the appellants should have been familiar with the pleadings in the cause, as well as other documents in the record. Reference to these would at once have revealed the fact that Judge Carballo had participated administratively to the extent above stated. A litigant, having these facts before him, cannot be permitted to speculate upon the action of a court and raise an objection to this sort after [the] decision has been rendered. The grounds for disqualification specified in Section 8 of the Code of Civil Procedure (now Rule 137) supply matter for preliminary exception, and timely objection should be submitted in writing as is require d in said section. The inadvertent failure of the court to disqualify himself in the case there mentioned does not supply a ground for reversing the judgment.; but of course if this court were of the opinion that the litigant had not had a fair trial, a new trial could be granted.... xxx The question of a judge's disqualification, therefore, is one that should be timely raised in the first instance, so that it may properly be raised and considered on appeal. At the same time ... if this Court were of the opinion upon a review of the case that the litigant had not, had a fair trial, it would grant a new trial, although the judge may not have been disqualified under Rule 137, not on the ground of lack of jurisdiction but in the best interests of justice.... [70]

Further, given that the guarantee of an impartial judge concerns itself with procedural due process[71] any defect therein may be waived as implied above and is subject to the curative effect of filing a motion for reconsideration or an appeal. That Crisanto and Joemar could have misapprehended or misappreciated the events, especially as to the participation of Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado, could easily be deduced from the fact that the incident occurred at nighttime; Crisanto was "a little bit far"[72]from his father, and he ran away. Joemar, who was only six years old, was sitting on a sled.[73] He did not testify as to his distance to Federico when the latter was attacked. We have then serious doubts as to the culpability of accused Josue Galas, Noe Galas, Dimas Acma, and Maximo Delgado. Their acquittal is inevitable for failure of the prosecution to overcome the presumption of innocence which is guaranteed in Section 14(2), Article III of the Constitution. The fate of accused Gonzalo Galas is entirely different. He admitted that he killed Federico Gamayon; however, he interposed self-defense to justify his act. The rule is unbending that where the accused admits the killing of the victim but invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself, i.e., the burden is shifted to him to prove that the killing was justified and he incurred no criminal liability therefor. For that purpose, he must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence for, even if the latter were weak, it would not be disbelieved after his open admission of responsibility for the killing. [74] The three requisites of self-defense which accused Gonzalo Galas has to satisfy by clear and convincing evidence are: (1) unlawful aggression on the part of the victim, Federico Gamayon, (2) the reasonable necessity of the means he (Gonzalo) employed to prevent or repel it; and (3) lack of sufficient provocation on his (Gonzalo's) part. [75] The prosecution and Gonzalo Galas have contrariant versions as to how the incident started. The former claimed that when Federico was near Gonzalo's house, Gonzalo called the former who then approached the latter. The latter then suddenly hacked Federico with a bolo. Upon the other hand, Gonzalo contended that while he was helping a baby carabao nurse from its mother at a place about twenty meters from his house, Federico called and challenged him to a fight and when he approached Federico, the latter stabbed him with a bolo. He then grabbed his own bolo to defend himself and retreated; but since Federico still hit him, they hacked each other. Assuming Gonzalo's version to be true and accurate, he, therefore, accepted a challenge to fight. Both had bolos with them. By accepting the challenge and immediately approaching Federico, Gonzalo placed himself in an unlawful status. Settled is the rule that when parties mutually agree to fight, it is immaterial who attacks or receives the wound first, for the first act of force is an incident of the fight itself and in nowise is it unwarranted and unexpected aggression which alone can legalize self-defense. A personal fight freely and voluntarily accepted creates an illegal state of affairs which comes within the sanction of criminal law, during which no application can be made to either party of the circumstances modifying criminal liability, arising from facts or accidents, physical or otherwise, of the fight itself. [76]

Consequently, Gonzalo's claim of self-defense hardly merits even a semblance of sympathy. That both had a fight was confirmed by Joemar in his answers during crossexamination. Thus: ATTY. DE LOS REYES: Q So that you saw the fight between your uncle, Federico Gamayon and accused Gonzalo Galas? A Yes, sir.

Q And it was very near the house of the Accused Gonzalo Galas? A Yes, Sir.

Q And inspite of the fact that it was already 9:00 o'clock that night you saw actually the fighting? A Yes, Sir.[77]

Crisanto Gamayon likewise admitted that Gonzalo Galas sustained wounds. Thus: ATTY.RUELO: xxx Q And you knew that Gonzalo Galas also suffered wounds? A Yes, sir.

Q And you are trying to tell the Honorable Court it was the other accused who inflicted his wound? A I don't know, Sir.[78]

The claim of the prosecution that it was not possible that Federico inflicted the injuries on Gonzalo because the former was unable to pull out his bolo from its scabbard does not inspire belief. There is no evidence that Gonzalo's wounds were self-inflicted and the speculation of the prosecution that they would have been inflicted by his co-accused remains speculative. The best evidence that Federico was unable to use his bolo was his bolo and its scabbard; yet, they were not presented. The challenge hurled by Federico was not unmotivated. Crisanto provided the motive: Gonzalo did not pay Federico the rental for one year for the former's carabao which the latter leased. The foregoing considered, we rule that accused Gonzalo Galas is liable only for the crime of homicide as defined and penalized in Article 249 of the Revised Penal Code. Since no mitigating or aggravating circumstances have been proven the medium period of the penalty of reclusion temporal prescribed in Article 249 may be imposed upon him. He is also entitled to the benefits of the Indeterminate Sentence Law, and as such, may be sentenced to suffer an

indeterminate penalty ranging from ten (10) years of prision mayor medium, as minimum, to seventeen (17) years and four (4) months of reclusion temporal medium, as maximum. WHEREFORE, the instant appeal is partly granted and the judgment appealed from is modified. As modified, (1) accused JOSUE GALAS, NOE GALAS, DIMAS ACMA alias "Dimay," and MAXIMO DELGADO are hereby ACQUITTED on grounds of reasonable doubt and ordered RELEASED from detention unless some other lawful cause warrants their further detention; and (2) accused GONZALO GALAS is CONVICTED of the crime of homicide, as defined and penalized in Article 249 of the Revised Penal Code, his guilt therefor having been proven beyond reasonable doubt, and applying the Indeterminate Sentence Law after having determined the absence of mitigating or aggravating circumstances, he is hereby sentenced to suffer an indeterminate penalty ranging from TEN (1O) years of prision mayor medium, as minimum, to SEVENTEEN (17) years and FOUR (4) months of reclusion temporal medium, as maximum, with all the accessory penalties provided by law, to indemnify the heirs of Federico Gamayon in the sum of P50,000.00, and to pay the costs in the trial court and in this instance. SO ORDERED. Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ, concur.

[1]

Original Records (OR), 2. THIRD DIVISION

[G.R. No. 113791. February 22, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MENDOZA, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; QUALIFICATION OF WITNESSES. - Section 20, Rule 130 of the Rules of Court provides: Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses x x x. With respect to the disqualification of children to be witnesses, Section 2 1(b) of the abovementioned rule reads: The following persons cannot be witnesses: x x x (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined.

2. ID.; ID.; ID.; ID.; DETERMINATION THEREOF; BEST RESOLVED BY THE TRIAL COURT. - The requirements then of a childs competency as a witness are the: (a) c apacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. As held in United States vs. Buncad, (25 Phil. 530, 536 [1913]) quoting from Wheeler vs. United States (159 U.S. 523 [1895]),and reiterated in People vs. Raptus (198 SCRA 425, 433 [1991]) and People vs. Libungan (220 SCRA 315, 323 [1993]): The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. The trial court has adjudged Paul Michael competent to testify. We agree. A close and careful examination of the testimony of Paul Michael shows that at the time he testified, he could be deemed a child of above average intelligence, i.e., capable of giving responsive ansWers to the questions asked of him by the trial judge, as well as recalling events and relating them to such recollections. The initial hesitancy of Paul Michael to name his father as the author of the crime was sufficiently explained by the trial court as follows: The first time Paul Michael was presented as [a] witness, the only thing substantial he testified on was that his father boxed his mother in the mouth and tied her. On further questions, he refused to answer anymore. The Court noticed the reason for such adamant attitude of the witness. His father, the accused, was directly in his sight and whenever their eyes met, the child could speak no more. The second time the witness was presented, the private prosecutor covered the child from the accused. The Court likewise directed the accused to sit farther away thereby placing the accused out of the direct sight of the witness. As a result, the child was able to testify freely and extensively without hesitation. We defer to such observation and explanation. Indeed, there are certain matters that aid the trial court in assessing the credibility of a witness which are not available to the appellate court, such as emphasis, gesture, and the inflection of the voice of the witness. The trial court had the distinct opportunity to make such observations and to avail of such aids while Paul Michael was on the witness stand, thusly, we find no reason to disregard the assessment made by the trial court. 3. CRIMINAL LAW; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; MITIGATING, ABSENT SUFFICIENT PROOF THAT IT WAS HABITUAL NOR SUBSEQUENT TO THE PLAN TO COMMIT THE FELONY; CASE AT BAR. - The trial court correctly appreciated in favor of the accusedappellant the mitigating circumstance of intoxication. The accused-appellant committed the felony in question in a state of intoxication and there was no sufficient proof that it was habitual nor subsequent to the plan to commit the felony. APPEARANCES OF COUNSEL The Solicitor General for plaintiff-appellee. Miguel P. Pineda for accused-appellant.

DECISION DAVIDE, JR., J.: Maria Gina Avila Mendoza, a mother of three young children, was put to fire in her home in Balasing, Sta. Maria, Bulacan, on 22 November 1989. She suffered extensive second to fourthdegree burns and died of hypostatic pneumonia and infected fourth degree burns on 30 November 1989. Her husband, accused-appellant Rolando Mendoza, was charged with the crime of parricide in an information filed on 29 June 1990 with Branch 8 of the Regional Trial Court (RTC) of Malolos, Bulacan. The accusatory portion thereof read: That on or about the 22nd day of November, 1989, in the municipality of Sta. Maria, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rolando Mendoza, armed with a kerosene gas [sic] and with intent to kill his wife Maria Gina Mendoza, with whom he was united in lawful wedlock, did then and there wilfully, unlawfully and feloniously attack, assault and burn with the kerosene gas he was then provided, the said Maria Gina Mendoza which directly caused her death. Contrary to law.1 Trial on the merits was had after accused-appellant entered a plea of not guilty at his arraignment.2 The prosecution presented as its witnesses Paul Michael Mendoza, a five-year old child of the victim and the accused-appellant; Jhun Avila, Teofisto Avila, and Rodora Avila, the victims brother, father, and sister, respectively; and Dr. Nieto M. Salvador, the Medico-Legal Officer of the National Bureau of Investigation (NBI). On its part, the defense presented the accusedappellant himself and Erlinda Porciuncula, a childhood friend. The testimonies of the witnesses for the prosecution established the following facts: The accused-appellant and the victim were married on 30 January 1985 at the Sto. Cristo Parish Church in Bocaue, Bulacan and lived in Balasing, Sta. Maria, Bulacan. 3 Their union bore three children: Paul Michael, the eldest, who was born on 7 June 1985,4 John-John, and Paula, the youngest.5 In the evening of 22 November 1989, the accused-appellant and his wife were in their residence with their children. At around 4:00 a.m. the next morning, relatives of the accusedappellant went to the house of Jhun Avila (the victims brother) in Wawa, Balagt as, Bulacan, and informed him that his sister Gina got burned. Two hours later, Jhun and his father Teofisto Avila went to the house of Gina and her husband, only to discover that the latter were not there. They found the things inside the house in disarray; saw a Coke bottle which smelled of kerosene, hair strands and burned human flesh in the comfort room; and the burned clothes of Gina outside the house. They also noticed that the branches and leaves of the atienza tree in front of the house were likewise somewhat burned. They proceeded to a neighbors house where Paul Michael, John-John, and Paula were temporarily sheltered. Paul Michael was sitting in a corner and somewhat tulala, while Paula was sleeping. Jhun then brought the children to his house.6

As Erlinda Porciuncula informed the Avila family that Gina had been brought to the Manila Sanitarium Hospital in Pasay City, Teofisto, Jhun, and Rodora proceeded there.7 According to Jhun, however, they were not able to talk to Gina that day as she was inside the operating room. It was only after two days that Jhun was able to see Gina, who lay naked with all the hospital gadget[s] in the mouth and at the head and she was completely bald and her body was burned.8 Jhun likewise testified that Gina was unable to talk to her sister Rodora nor her father Teofisto.9 Gina died on 30 November 1989. Dr. Noel Minay, Medico-Legal Officer of the NBI,, conducted the autopsy and determined the cause of death to be hypostatic pneumonia; infected 4th degree burns;10 and in his Autopsy Report,11 he entered the following postmortem findings: Burns, extensive, second to fourth degree, with skin grafts, excepting the back of the neck and head, pelvic area, buttocks, whole of the back, posterior aspect of the right leg, and lower anterior third of the leg and foot, left side. Lungs, with foci of consoliditions at the bases; transections shows (sic) yellowish mucoid material in the lower part of the tracheo-bronchial tree. Brain and other visceral organs, marked congestion. Stomach contains small amount of yellowish fluid material. This report also indicated that the cause of death was HYPOSTATIC PNEUMONIA; INFECTED FOURTH DEGREE BURNS. Dr. Nieto M. Salvador testified on the certification and autopsy report, in view of Dr. Minays resignation from the NBI sometime after he examined the cadaver of the victim. 12 In the evening of 30 November 1989, Jhun told Paul Michael that his mother Gina had died. Paul Michael then narrated to him what actually happened to his mother that fateful evening. Because of these revelations and the findings of the doctor, Jhun reported the matter to the police authorities in Sta. Maria, Bulacan. 13 Jhun Avila had gone five times to the residence of Gina and the accused-appellant from 23 November 1989 to 30 November 1989, yet he did not see the accused-appellant; in fact, the latter never showed up during the wake nor burial of Gina. It was only when the accusedappellant was arrested in the house of a woman in Longos, Balagtas, Bulacan,14 that Jhun saw him for the first time after the incident. The medical expenses incurred for the hospitalization of Gina amounted to P88,750.00, of which, her parents were able to pay only P18,000.00. For the balance, Teofisto had to sign a promissory note to be paid on installments.15 As to how Gina was burned, only five-year old Paul Michael could testify thereon.

In his testimony during the presentation of the evidence in chief on 18 February 1991, Paul Michael declared that one evening inside their house, his father boxed his mother on her mouth and then tied her up. However, the witness did not answer succeeding questions which sought to elicit what happened thereafter, although he kept on looking at his father throughout this period. He later revealed that he saw matches and kerosene in their house. He likewise declared that his mother was now in heaven because she was dead. 16 During his rebuttal testimony on 12 October 1992, Paul Michael categorically declared that it was his father who burned his mother. The accused-appellant, who was drunk at that time, first tied the victims hands behind her back, then poured kerosene on the front of her body and set her aflame. Paul Michael further declared that his father tied-up his mother because they quarreled when his mother wanted him (Paul Michael) to go with the accused-appellant to the street corner, but his father refused. Finally, many times before, his parents quarreled because his father was always drunk.17 Pertinent portions of Paul Michaels testimony on rebuttal are as follows: Q When your father Rolando Mendoza testified on direct examination, he stated that when he returned to your house in Balasing, Sta. Maria, Bulacan on November 22, 1989, he saw your mother was jumping up and down while her dress was already burning. What can you say about that? A It is not true, Sir.

Q Why do you say that it is not true? A Because it was he who burned my mother, Sir.

COURT: How did he burn your mother? A At first he tied up my mother, then he poured kerosine [sic] upon my mother, Sir.

Q What was tied, the hands or the feet of your mother? A The hands, Your Honor.

Q How was it tied? A At the back, Your Honor.

Q Do you know the reason why she was tied up? A Yes Your Honor. They were quarreling because my mother wanted me to go with my father to [sic] street corner.

Q Then what happened next? A Because of that they quarreled already.

Q What you mean is that your mother was objecting you to go [sic] with your father? A My mother wanted me to go with my father but my father refused me [sic] to go with him, Your Hon or.

Q What would you do at the street corner with your father? A She just wanted me to accompany my father.

Q And because of that quarrel, your father tied the hands of your mother? A Yes, Your Honor. Q Then he put kerosine [sic] at the front body [sic] of your mother? A Yes, Your Honor.

Q And after putting kerosine [sic], what did he do next? A He lighted it, Your Honor.

Q Was that the first time that you[r] mother and your father quarreled? A Many times, Your Honor.

Q What was the cause of their quarrel? A Because my father was always drunk, Your Honor.

Q At the time when your mother was tied and then kerosine [sic] was poured upon her dress, was your father drunk? A Yes, Your Honor. Yes, Your Honor.18

Q Your father always went out and when he returned he was always drunk? A

The defense, of course, had a different story to tell. Erlinda Porciuncula, who grew up with the accused-appellant and was like a sister to him, testified that at around 8:30 p.m. of 22 November 1989, Rolando Mendoza came to her house asking for help because his wife burned herself. Together with the accused-appellant, she borrowed the owner-type jeep of her neighbor so they could bring his wife to the hospital. They proceeded to St. Marys Hospital, but the attending physician advised them to bring the victim to the Philippine General Hospital (PGH). At the hospital, the staff could not admit the victim due to the unavailability of rooms. On the way to the PGH, the victim, who was lying in the front seat of the jeep, told Porciuncula that she was fed up with her life and was entrusting her children to her. They then went to the Manila Sanitarium Hospital where the victim was immediately given first aid and transferred to the isolated Room No. 328. The accused appellant requested the witness to buy medicine and inform the relatives of the victim of what had happened, which she acceded to. She was able to visit the victim three more times before the victim died on 30 November 1989, and on two of these occasions, she saw the accusedappellant at the hospital.19 Accused-appellant Rolando Mendoza testified that on 22 November 1989, between 5:00 to 6:00 p.m., three persons who wanted to befriend him visited him in his house. These three persons, of whom the accused-appellant could only name one, brought a bottle of liquor and

had a drinking session with him, which lasted about an hour or two. As these three persons were leaving, the accused-appellant offered to accompany them to the road. After doing so, he returned home, whereupon he saw his wife jumping up and down and removing her burning clothes. He saw a pail of water which he then used to douse out the flames. At this time, his wife cursed him and said: Putang-ina mo, sawang-sawa na ako sa buhay na ito, and Huwag mo akong pakialaman.20 The accused-appellant did not mind her, merely proceeded to remove her dress and cried for help. The neighbors came over and he entrusted the children to them. Several others arrived and he asked one of them who owned a vehicle to help him bring his wife to the hospital. They were able to bring her to St. Marys Hospital, but since the hospital did not have a burns specialist, they were advised to bring the victim to a hospital in Manila. The driver of the jeep, however, refused to bring them to Manila as he had neither a drivers license nor gas. The accused-appellant was instead brought to Bocaue, Bulacan, and there he was able to procure another vehicle and borrow some money. Eventually, his wife was brought to the Manila Sanitarium Hospitalafter the PGH refused to admit the victim. He stayed with his wife from the time she was admitted up to the time she died, and even bought the needed medicines. He did not attend her wake nor burial because of the threats his brother-in-law made. When asked if he knew why his wife burned herself, he surmised that she was aburido21 from all their financial difficulties.22 In giving full credence to the testimony of eyewitness Paul Michael, 23 the trial court observed that: As provided by Section 20, Rule 130 of the Rules of Court, a person who can perceive, and perceiving, can make known his perception to others, may be a witness. A four-year old boy can already speak clearly, can understand things happening around him, and ready to study, to read and to write. For families who can afford, a four-year old child is already sent to the nursery to begin his/her studies. An intelligent boy is undoubtedly the best observer to be found. He is little influenced by the suggestion of others and describes objects and occurrences as he has really seen them (Pp. vs. Bustos, 45 Phil. 9). Paul Michael was five months over four years when the incident happened. He could perceive things happening around him. This was the reason why when his grandfather and an uncle found him in the house of a neighbor, he was in a state of shock, or at least dumbfounded (tulala). Because he knew the implication of what had happened to his mother. He knew that the burning of his mother might cause her death. If, indeed, he could not yet perceive things, such happening would pass unnoticed and without impact on him. Unless a childs testimony is punctured with serious incon sistencies as to lead one to believe that he was coached, if he can perceive and make known his perception, he is considered a competent witness (Pp. vs. Cidro, et al., 56 O.G. 3547). The first time Paul Michael was presented as [a] witness, the only thing substantial he testified on was that his father boxed his mother in the mouth and tied her. On further questions, he refused to answer anymore. The Court noticed the reason for such adamant attitude of the witness. His father, the accused, was directly in his sight and whenever their eyes met, the child could speak no more. The second time the witness was presented, the private prosecutor covered the child from the accused. The Court likewise directed the accused to sit farther away

thereby placing the accused out of the direct sight of the witness. As a result, the child was able to testify freely and extensively without hesitation.24 The trial court rejected the version of the accused-appellant, stating that: Accused Rolando Mendoza made the defense that his wife Maria Gina Avila-Mendoza burned herself. He, however, lost courage when Gina died. After Ginas death, he left the hospital and never returned. He failed to visit her during the wake and even during the burial. He was forced to come out only when arrested in a house of a woman in Longos, Balagtas, Bulacan. Against such behaviour of his may be applied an interpretation of flight in criminal law - that flight of the accused is an evidence of guilt and a guilty conscience (U.S. vs. Alegado, 25 Phil. 310). Accused gave as a reason for his failure to attend the wake and burial of his wife the threat of his brother-in-law to kill him if anything would happen to Gina. It is said that the wicked flee even when no man pursueth, whereas the righteous are as brave as a lion (U.S. vs. Sarikala, 37 Phil. 486). If, indeed, accused was not guilty and nothing bothered his conscience, he would be brave as a lion to meet his brother-in-law and face any and all consequences. In the same way that if his conscience is clear, no threat, real or imaginary, in the whole world would prevent him from staying by the side of his wife during her last moments on earth. The fact that he Went into hiding, ashamed or fearful of the death of his wife is an indication of his guilt. Further, the burning in the dress and body of Gina gives support to the claim of the prosecution that she was burned. Paul Michael testified that the hands of his mother were tied at the back. Jhun Avila testified that the branches and leaves of the atienza tree were burned. They tend to show that Gina was tied at the back, placed near the trunk of a tree and burned. Being tied, only the front portion of her body would naturally be burned. The tendency of one who burns himself is to burn his whole body and not stay stationary in one position so that both his front and back portions of his body would be burned. In this case, however, only the front portion of Ginas dress and body were burned as well as the branches and leaves of the atienza tree. That indicates that while the victim was burning, she remained stationary in the place where she was tied.25 Accordingly, the trial court convicted the accused-appellant as follows: WHEREFORE, the Court finds the accused Rolando Mendoza guilty beyond reasonable doubt of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code and hereby sentences him to a penalty of reclusion perpetua, and to indemnify the parents of the victim Maria Gina Avila-Mendoza the sum of P88,000.00 representing the amount of hospital bills of the victim. No cost. SO ORDERED.26 In this appeal, the accused-appellant prays for a reversal of the lower courts decision, maintaining that if his evidence is considered in its entirety, it would show his innocence. The accused-appellant underscores the fact that:

[A]fter November 22, 1989, the date of the incident, the child Paul Michael Mendoza had been and remains under the custody and care of the parents and brothers and sisters of the late Maria Gina Mendoza, who in full and unwavering anger, hatred, hostility, resentment, revenge and spite against the accused, pursued the charge against the accused and the ones who brought the child to the court to testify.27 He thus asks this Court to disregard the testimony of Paul Michael for being open to serious question and consideration as it was often attended [by] unintelligible answers and punctuated by contrary answers to previously given answers; [b]esides the childs tender age, he suffer[s] from [a] lack or inadequacy of sense of duty to tell the truth. He further claims that per the findings of the Medico-Legal Officer, the victim did not die of burns but of hypostatic pneumonia.28 After a thorough examination of the records and scrutiny of the evidence, we find no merit in this appeal. The accused-appellants seven-page Brief miserably fails to present convincing grounds why the challenged decision should be overturned. The lower court convicted the accused-appellant primarily on the basis of the testimony of eyewitness Paul Michael Mendoza, and it is obvious that the pith of the present appeal is the childs competency to testify and the credibility of his testimony. Section 20, Rule 130 of the Rules of Court provides: Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. xxx With respect to the disqualification of children to be witnesses, Section 21(b) of the abovementioned rule reads: The following persons cannot be witnesses: xxx xxx xxx

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States vs. Buncad,29 this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point, says: But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated. (Wigmore on Evidence, vol. I, p. 638)30

While on the same subject, Underhill declares: 257. Children on the witness stand. - Under the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. He is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon his competency that he is unable to define the oath or to define testimony. In the wise discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. x x x 31 The requirements then of a childs competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. 32 And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. 33 As held in United States vs. Buncad,34quoting from Wheeler vs. United States,35 and reiterated in People vs. Raptus36 and People vs. Libungan:37 The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. 38 The trial court has adjudged Paul Michael competent to testify. We agree. A close and careful examination of the testimony of Paul Michael shows that at the time he testified, he could be deemed a child of above average intelligence, i.e., capable of giving responsive answers to the questions asked of him by the trial judge, as well as recalling events and relating them to such recollections. The initial hesitancy of Paul Michael to name his father as the author of the crime was sufficiently explained by the trial court as follows: The first time Paul Michael was presented as [a] witness, the only thing substantial he testified on was that his father boxed his mother in the mouth and tied her. On further questions, he refused to answer anymore. The Court noticed the reason for such adamant attitude of the witness. His father, the accused, was directly in his sight and whenever their eyes met, the child could speak no more. The second time the witness was presented, the private prosecutor covered the child from the accused. The Court likewise directed the accused to sit farther away thereby placing the accused out of the direct sight of the witness. As a result, the child was able to testify freely and extensively without hesitation.39

We defer to such observation and explanation. Indeed, there are certain matters that aid the trial court in assessing the credibility of a witness which are not available to the appellate court, such as emphasis, gesture, and the inflection of the voice of the witness. The trial court had the distinct opportunity to make such observations and to avail of such aids while Paul Michael was on the witness stand,40 thusly, we find no reason to disregard the assessment made by the trial court. The accused-appellants contention that Paul Michaels testimony could have been influenced by the relatives of Gina, who were full of unwavering anger, hatred, hostility, resentment, revenge, more so since the child had been in their custody since after 22 November 1989, is unacceptable. The charge is nothing but unmitigated speculation as not a shred of evidence was offered in support thereof. Not even the rigorous cross-examination Paul Michael underwent dented the probative force of his testimony; on the contrary, it merely added strength thereto as it elicited nothing less than the boys adherence to truth. We realize how extremely painful it was for Paul Michael to reveal that it was his father who burned his mother. He knew that such a revelation could send his father to jail and thus brand him a son of a killer or a convict. If he did, nevertheless, it was to expose the truth and give justice to his mother who met an excruciatingly painful death. Verily, from the mouths of children we get the truth.41 Neither are we persuaded by the accused-appellants claim that the cause of death of his wife was hypostatic pneumonia and not due to the burns she sustained. Such a claim borders on misrepresentation, for as earlier shown, both the Autopsy Report (Exhibit H -1) and the Certificate of Post-Mortem Examination (Exhibit H) indicated the cause of death to be hypostatic pneumonia; infected fourth degree burns. Moreover, as testified to by Dr. Nieto Salvador, the proximate cause of the hypostatic pneumonia was Ginas recumbent position due to the fourth degree burns she suffered. Thus: COURT: What could have caused hypostatic pneumonia? A The victim was recumbent because of her intensive infections in front of her body and therefore she was always lying down which could have caused the hypostatic pneumonia.

Q What you mean [is] it [was] because of the fourth degree burns the victim sustained in front thats why she was always lying down and unable to change her position? A Yes, Your Honor.

Q Do you mean that hypostatic pneumonia can be acquire[d] by merely always lying down? A Yes, Your Honor.

Q Is that the only cause?

Thats why it is called hypostatic because hypostatic means that the assumed position of the patient is recumbent and the recumbent position of the patient would greatly affect the fluids in the lungs as it cant flow down. xxx xxx xxx

Q Would you say that hypostatic pneumonia may also be caused by fourth degree burns? A act.
43

Yes, Sir.42

It goes without saying that an accused is liable for all the consequences of his felonious Finally, the accused-appellant was never seen after the death of his wife - neither during her wake nor at her burial. His whereabouts were unknown. He did not even bother to visit his children or inform them where to find him in case they needed him, knowing all too well that he was the only parent left to them. In short, he was even afraid to see his children; he could not trust them. In a manner of speaking, he was afraid of his own shadow. All his protestations of innocence are thus belied by his flight as indicative of guilt on his part, or of his guilty mind. It has been said that the wicked man flees though no man pursueth, but the righteous are as bold as a lion.44 The explanation proffered for his flight is lame and feeble, moreover, he offered no credible proof that indeed the family of his wife had threatened him bodily harm. The trial court correctly appreciated in favor of the accused-appellant the mitigating circumstance of intoxication. The accused-appellant committed the felony in question in a state of intoxication and there was no sufficient proof that it was habitual nor subsequent to the plan to commit the felony.45 It failed, however, to award civil indemnity to the children of the victim. Conformably with current case law, they should be awarded the sum of P50.000.00. WHEREFORE, the instant appeal is hereby DISMISSED. Being in accordance with the facts and the law, the challenged decision of Branch 8 of the Regional Trial Court of Bulacan in Criminal Case No. 1414-M-90 is AFFIRMED, subject to the above modification on the additional award of P5 0,000.00, as civil indemnity, to the heirs of the victim, Gina Avila Mendoza. Costs against the accused-appellant. SO ORDERED. Narvasa, C.J (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

SECOND DIVISION

[G.R. No. 134940. April 30, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. CATALINO MELENDRES, JR., BERNARDINO KIRIT and TEODULO KITAY, appellants. DECISION AUSTRIA-MARTINEZ, J.: Before us is an appeal from the decision of the Regional Trial Court of Negros Oriental (Branch 44) finding accused-appellants Catalino Melendres, Jr., Bernardino Kirit and Teodulo Kitay guilty beyond reasonable doubt of double murder and imposing a penalty of two (2) Reclusion Perpetua. On November 10, 1992, an Information was filed against Catalino Melendres, Jr., alias Jun Jun, together with two John Does alleging: That on or about July 23, 1992 at 9:00 oclock in the evening, more or less purposely sought to better accomplish their criminal design, in Sitio Balatican, Barangay Casala-an, Siaton, Negros Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, treachery and abuse of superior strength, went up the house of one Pacifico Gualingco and once inside, did then and there, willfully, unlawfully and feloniously, assault, attack, hack and wound the brothers SYREL and EXOR, all surnamed BALASABAS, who were asleep in said house, with the use of long bolos with which said accused were then armed and provided, thus inflicting the following injuries, to wit: On Syrel Balasabas: 1. Hacking wound, neck cutting muscles, fascia and bones 2. Hacking wound, shoulder, (L) 6 cm. 3. Hacking wound, head (L), 10 cm. 4. Disarticulation, small, ring and middle fingers, On Exor Balasabas: 1. Hacking wound, neck, cutting muscles, fascia and bones 2. Hacking wound, head 16 cm., frontal to temporal area traversing ear (L) with skull FX 16 cm. 3. Hacking wound, frontal area with skull FX which injuries caused victims death immediately thereafter.

Contrary to Article 248 of the Revised Penal Code. [1] On May 3, 1993, Catalino was arraigned and pleaded not guilty to the crime charged against him.[2] On June 30, 1993, the prosecution presented its first witness, Rodrigo Hungoy. He identified Bernardino Kirit and Teodulo Kitay, who were then present in the courtroom, as the two companions of Catalino who hacked Syrel and Exor Balasabas on the night of July 23, 1992. The prosecution then moved to amend the Information praying that the names of Bernardino Kirit and Teodulo Kitay be substituted for the two John Does named in the Information. The trial court granted the Motion and ordered the Office of the Provincial Fiscal to conduct a preliminary investigation with respect to Bernardino and Teodulo. On July 15, 1993, the 2nd Assistant Provincial Prosecutor submitted his Resolution dated July 13, 1993 finding that the two John Does in the original Information identified in open court by Rodrigo Hungoy are in fact Bernardino Kirit and Teodulo Kitay.[3] Thus, the RTC allowed the inclusion of appellants Bernardino and Teodulo as co-accused in the commission of the crime of double murder. Upon arraignment, they pleaded not guilty to the crime charged against them. The facts established by the prosecution evidence are as follows: In the evening of July 23, 1992, first cousins, Rodrigo Hungoy and Mardie Balasabas together with Mardies brothers, Syrel and Exor, were resting inside the house of one Pacifico Gualingco at Sitio Balatican, Barangay Casalaan, Siaton Negros Oriental. The four companions are cultivating the farmland owned by Pacifico and were staying at the house built on the middle of the farm. The house has two floors, the second floor being two and a half feet above the ground and accessible through a stair inside the sala of the house. Syrel and Exor were sleeping on the second floor while Rodrigo and Mardie were lying near the kitchen on the first floor. About 9:00 of the same evening, the barking of the dog awakened Rodrigo and Mardie. They peeped through the porch and looked at the front yard where they saw three persons in the yard who they did not immediately recognize because it was dark. The three persons proceeded to the upper portion of the house and pushed the main door which was not locked. Syrel and Exor remained asleep while Rodrigo and Mardie jumped out and hid at the back portion of the house which was not illuminated. They again peeped through a hole in the bamboo walling of the house which was already dilapidated. There, Rodrigo and Mardie recognized the faces of the three appellants because the room where Syrel and Exor were sleeping was illuminated by a tingkaro, a kerosene lamp. The three went near Syrel and Exor. With the use of a bolo, Catalino and Bernardino proceeded to hack Syrel while Teodulo hacked Exor. After witnessing the hacking of Syrel and Exor, Rodrigo and Mardie went straight to the house of Rodrigo which is about 150 meters away from the house where the incident happened. Rodrigo went directly inside the house ahead of Mardie. Mardie, on the other hand, went to another house which is approximately ten meters away from Rodrigos house, occupied by his parents. He informed Rodrigos father and one Ricardo Palomar about the hacking of Syrel and Exor. Rodrigos father then advised Mardie to go inside the house where Rodrigo was and to close the door.[4] The following morning Rodrigo and Mardie informed the latters mother, Lita Balasabas about the incident that happened the previous night. Together

with some relatives and neighbors they then went to the house where the incident occurred and found the dead bodies of Syrel and Exor. They placed the cadavers in coffins and brought them to the poblacion and had them autopsied. After securing the death certificates of her sons, Lita, together with other companions went to the police to report the incident. They then buried the bodies on the same day.[5] The principal defense of appellants is alibi. In support thereof, six witnesses were presented, namely: Juan Pahayat, appellant Bernardino Kirit, Victoria Kirit, Ricardo Palomar, appellant Catalino Melendres, Jr., and Editha delos Santos. Juan Pahayat testified as follows: From July 20, 1992 until July 25, 1992, he slept at the house of appellant Bernardino Kirit located at Baliw, Casalaan, Siaton, Negros Oriental because he was then helping Bernardino build a small house for the employer of the latter. Around 7:00 in the evening of July 23, 1992, he, together with appellants Bernardino and Teodulo, went to the house of appellant Catalino which is about 25 meters away from the house of Bernardino. They cooked food for Catalino who was then sick with measles and was unable to take care of his young nephew and niece who were his only companions in the house. They stayed for three hours and left at 10:00 of the same evening. Sitio Balatican where the incident happened is about ten kilometers away from Sitio Baliw and there is no means of transportation. It would take about two hours to travel by foot to and from these places. [6] Appellant Bernardino Kirit testified as follows: In the evening of July 23, 1992, he was inside his house at Baliw, Casalaan, Siaton, Negros Oriental. Around 7:00 of that evening, his neighbor, co-appellant Catalino, summoned for him. Catalino requested him to fetch his carabao and cow, to feed his pigs and to cook their food because he had fever. Bernardino, in turn, asked for the help of their neighbor, co-appellant Teodulo Kitay, to help him fetch and feed the animals. Bernardino finished cooking around 8:00 of the same evening. Thereafter, he served food to Catalino and his nephew and niece who were Catal inos companions in his house. Catalino further requested Bernardino to let the children sleep first before they leave the house. Bernardino acceded to Catalinos request and, together with Teodulo, left Catalinos house at 10:00 in the evening, after the children have gone to sleep. Sitio Baliw is about ten kilometers from Sitio Balatican. There is no means of transportation to and from those places and it would take more than two hours to travel by walking. Prior to June 30, 1993, when they were identified by prosecution witness Rodrigo Hungoy, he and co-appellant Teodulo Kitay already met prosecution witness Rodrigo Hungoy when Bernardino appeared as a witness for Catalino before the Municipal Trial Court of Siaton. [7] Bernardinos wife, Victoria Kirit, testified as follows: Catalino Melendres is their neighbor, his house being about twenty-five meters away from theirs. On the night of July 23, 1992, Catalino asked for assistance from Bernardino. Bernardino, together with his co-appellant uncle, Teodulo Kitay, responded to Catalinos call for help and went to the house of the latter. Around twenty minutes after the two were gone, Victoria followed and also went to the house of Catalino. Upon arriving at the house of Catalino around 7:20 in the evening, she saw Bernardino cooking food while Teodulo was feeding the pigs. She also saw Catalino lying down because he had fever while his nephew and niece were sitting in a corner of the house. Victoria

did not stay long and went home after ten minutes. It was around 10:00 of the same evening that her husband Bernardino arrived home.[8] Ricardo Palomar testified as follows: Around 5:00 in the afternoon of July 23, 1992 he was at Barangay Casala-an, Siaton, Negros Oriental, near the house of Loreta Balasabas, tending his carabao. There, he saw one Bebing Salit holding a bolo and sitting on a banana trunk near the house of Loreta. When the sun set, Ricardo brought his carabao to a pool near the house of Loreta, after which he went home to take supper. Around 9:00 in the evening of the same day, he went back to where his carabao was. He saw Bebing Salit going down the house of Loreta carrying a bunch of chickens in his left hand and a bolo in his right hand. Ricardo then took his carabao home. The following morning Ricardo learned that Syrel and Exor Balasabas were killed.[9] Appellant Catalino Melendres, Jr. testified as follows: He knew Syrel but he was not acquainted with Exor; co-appellants Bernardino Kirit and Teodulo Kitay are his neighbors at Sitio Baliw, Barangay Casalaan, Siaton, Negros Oriental; Sitio Baliw is, more or less, ten kilometers away from Sitio Balatican; Sitio Balatican can be reached by foot or by riding on a horse or carabao but not through a motor vehicle. He claimed that at 9:00 in the evening of July 23, 1992, he was in his house at Sitio Baliw accompanied by his nephew and niece. He was then afflicted with chicken pox and had fever. Since he was sick, he requested his co-appellant Bernardino Kirit to prepare their food. Bernardino responded to his plea and went to his house around 7:00 in the evening. Aside from Bernardino, his other co-appellant Teodulo Kitay and Juan Pahayat also went to his house. Teodulo accompanied him and his nephew and niece Bernardino while Juan arrived an hour later. Juan did not stay long and went home an hour after arriving. On the other hand, both appellants Bernardino and Teodulo accompanied them until 10:00 in the evening.[10] On February 27, 1998, the trial court rendered its Decision, the dispositive portion of which reads: WHEREFORE, all the foregoing premises considered, judgment is hereby rendered: 1. Declaring all the three (3) accused Catalino Melendres, Jr. alias Jun -Jun, Bernardino Kirit and Teodulo Kitay guilty beyond reasonable doubt of the crime of Double Murder of Syrel and Exor Balasabas and considering the presence of conspiracy, the Court hereby imposes the penalty of imprisonment for two (2) Reclusion Perpetua together with all the accessory penalties and to indemnify the heirs of the victims (Syrel and Exor Balasabas) the amount of Fifty Thousand Pesos, for each accused without subsidiary imprisonment in case of insolvency. 2. In the service of their sentence, the above-named accused shall be credited with the full time of their preventive imprisonment in accordance with Article 29 of the Revised Penal Code as amended by Republic Act 6127, if the conditions prescribed therein have been complied. SO ORDERED.

Hence, the instant appeal with the following Assignment of Errors: I THAT THE HONORABLE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF DOUBLE MURDER AS CHARGED IN THE INFORMATION. II THE HONORABLE LOWER COURT GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONIES OF RODRIGO HUNGOY, FIRST COUSIN OF THE VICTIMS AND WHO APPEARED TO BE MENTALLY DERANGED AND MARDIE BALASABAS, BROTHER OF THE VICTIMS, AND WHOSE TESTIMONIES ARE ALL INCREDIBLE AND NOT WORTHY OF ANY CREDENCE AND BELIEF. III AND, THAT THE HONORABLE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING ALL THE ACCUSED FOR INSUFFICIENCY OF EVIDENCE AND/OR AT LEAST ON THE HYPOTHESES OF REASONABLE DOUBT. Appellants attribute error on the part of the trial court in giving weight and credence to the testimonies of prosecution witnesses Rodrigo Hungoy and Mardie Balasabas. The wellestablished rule is that, on the issue of credibility, the trial court is in a better position than the appellate court because the former had the full opportunity to observe directly the deportment and manner of testifying of the witness.[11] Thus, unless the trial court plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, its assessment on credibility must be respected.[12] In the present case, we find no reason to disturb the trial courts evaluation and assessment of the credibility of Rodrigo and Mardie, the same not being tainted by any arbitrariness or palpable error. As to the alleged mental derangement of Rodrigo, it is true that during his testimony in open court on December 15, 1993, he was uncooperative, defiant and even disrespectful to the court. The trial court even cited him for direct contempt and ordered his incarceration. However, it appeared from the order of the trial court that Rodrigos defiance at that time was not a result of his alleged mental incapacity but because he was drunk. Moreover, while the prosecution admitted that Rodrigo has experienced some mental shock sometime ago, no evidence was presented by the defense to impeach him on ground of incompetence. On the other hand, a review of the transcript of stenographic notes taken during the four days that Rodrigo testified and underwent examination on the witness stand reveals that, except for the incident on December 15, 1993, he is responsive to the questions propounded and was able to convey sufficiently intelligent answers. Under Section 20, Rule 130 of the Revised Rules of Court, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.

Appellants further assail the credibility of Mardie and Rodrigo, by putting the following in issue: First, they claim that if Rodrigo and Mardie were indeed present at the scene of the crime on the night of July 23, 1992, why did they not shout or do anything which could have prevented or stopped the assailants from killing Syrel and Exor. We have held that the workings of the human mind when placed under emotional stress are unpredictable and that people react differently.[13] There is no standard form of behavior when one is confronted by a shocking incident especially if the assailant is physically near.[14] In the present case, appellants expect that Rodrigo and Mardie should have done something to stop the assailants from attacking Syrel and Exor. However, considering the proximity of appellants to the place where Rodrigo and Mardie were hiding and since both of them were then unarmed and outnumbered, it is not unexpected, and in fact, it is consistent with the instinct of self-preservation, that they should remain silent for fear that if appellants discover their presence, they will also be attacked. This is confirmed by the testimony of Mardie, to wit: Q: Alright, now alarmed already because they are with weapons, did it not occur to you to also . . . to awaken your brothers considering the immediate peril of your life and their lives? A: I did not awake them because we were frightened. Q: You did not even as much as or in the least, shout on top of your voice while you were jumping considering that the others were your two brothers no less? A: We did not shout because we might be included.[15] Second, appellants question the failure of Mardie to immediately inform her mother of the incident involving his brothers considering the nearness of their house to the house of Rodrigo where they went after witnessing the said incident. We agree with the observation of the Office of the Solicitor General (OSG) that after witnessing the brutal hacking of his brothers, Mardie must have already been gripped by fear that he chose to remain in the house of Rodrigo rather than immediately go home. Moreover, he was advised by his uncle to go inside their house and lock the doors. Young as he was, fifteen at that time, it was perfectly normal for him to follow the advise of his uncle. Third, appellants claim that it was only after a month that Rodrigo and Mardie reported the killings to the police authorities. Such delay, appellants insists, casts grave and serious doubts on the veracity of their testimonies. Records show that the affidavits of Rodrigo and Mardie were taken on August 24, 1992 and August 25, 1992, respectively, or a month after the hacking incident. The apparent delay in reporting the incident was adequately explained by Rodrigo and Mardie. Mardie testified that he had verbally related the killings to the police the day after the said incident.[16] The police investigated him but his affidavit was not taken; instead, he was told to go back.[17] On the other hand, Rodrigo testified as follows: Q: According to the records of this case, your affidavit was taken on August 24, 1992. Are we to understand that, that was your first time to go to the police station of Siaton and report on what you allegedly saw on the night of July 23, 1992?

A: In Siaton. Q: Yes. And that was your first time to report. Is that correct? A: Yes. Q: You have not reported to any police authorities from July 23, 1992 up to August 23, 1992, because according to your affidavit, your affidavit was taken only on August 24, 1992. Is that correct? A: How can I tell them they know already the incident. Q: How do you know that they know the incident? A: They attended the time of the burial.[18] Hence, it is clear from the foregoing testimony of Rodrigo that he is of the belief that the police authorities already have actual knowledge of the killing because they attended the burial of Syrel and Exor. Hence, his ignorance of the necessity of immediately executing an affidavit before the police authorities regarding the incident that he witnessed on July 23, 1992 cannot be taken against him. Considering that he only finished sixth grade and that he is suffering from some form of mental deficiency, he cannot be faulted in believing that it is no longer necessary to make a formal report to the police authorities because they already have actual knowledge of the killing of Syrel and Exor. Delay in making a criminal accusation will not necessarily impair the credibility of a witness if such delay is satisfactorily explained. [19] In this case, we find the explanation of Mardie and Rodrigo to be satisfactory. Fourth, appellants point out the alleged inconsistency in the testimonies of Rodrigo and Mardie as to whether or not they witnessed the crime through a hole in the wall of the house where they were sleeping or through the side of the house which has no wall. Again, this was adequately explained by Mardie, as follows: Q: You remember having testified during the preliminary investigation conducted by the Honorable Trial Court of Siaton? A: Yes. Q: And you were asked questions by the Court? A: Yes. Q: You were asked this question. I am reading page 3, Your Honor of the transcript of the proceedings in the preliminary investigation conducted on August 25, 1992, quote: Do you mean to say Mr. Balasabas that the house has no wall that you can immediately see whats happening inside the house? Answer: There were three sides of the house with wallings while the other side has no wall So, are we agreed to that, that according to your testimony one side of the house was without any wall? A: There is one side that the wall is not completed.

ATTY. DICEN: Q: You said that one side of the house has an incomplete walling, are you therefore telling this Honorable Court that when you declared before the municipal trial court that the other side has no walling at all, you were telling a lie because you are telling the truth now? A: What I mean is that, the three sides of the house has complete wallings, while the other side, the remaining one, has walling but it is not complete. So, I said only that there was no walling.[20] Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility.[21] In the present case, granting that there were inconsistencies in the testimonies of Rodrigo and Mardie, the same may be considered only as minor discrepancies that do not affect their credibility. In fact, minor inconsistencies in the testimonies of witnesses bolster rather then weaken their credibility as they erase any suspicion that their testimonies have been rehearsed.[22] What is important is that both Rodrigo and Mardie were consistent in positively identifying the three appellants as the persons who hacked Syrel and Exor. Appellants interpose the defense of alibi. For the defense of alibi to prosper, appellants must not only prove their presence at another place at the time of the commission of the offense, but they must also demonstrate that it would be physically impossible for them to be at the locus criminis at the time of the commission of the crime.[23] In the present case, the inconsistencies in the testimonies of defense witnesses make appellants alibi highly dubious. The crime of double murder was committed on July 23, 1992 at 9:00 in the evening. Aside from the self-serving testimonies of Bernardino and Catalino, the only persons who can attest to the presence of the appellants in the house of Catalino between 7:00 and 10:00 in the evening of July 23, 1992 are Victoria Kirit and Juan Pahayat. Victoria testified that while she was inside the house of Catalino, the only persons present were the three appellants and the nephew and niece of Catalino. [24] She never mentioned the presence of Juan Pahayat. Likewise, although Bernardino named Teodulo as one of his companions in helping Catalino, he never mentioned Juan. Yet, both Catalino and Juan testified that the latter was present at the house of Catalino on the night of July 23, 1992.[25] Catalino even claimed that Juan and Victoria were able to talk to each other. [26] Moreover, Juan testified that he went to the house of Catalino together with Bernardino and Teodulo. [27] They arrived at 7:00 in the evening, helped out in cooking food for Catalino, and left at 10:00 of the same evening.[28] However, Catalino claimed that only Bernardino and Teodulo went to his house around 7:00 in the evening and that Juan arrived an hour later. [29] He further testified that Juan stayed only until 9:00 while Bernardino and Teodulo left at 10:00. [30] Time and again, we have held that alibi must be supported by the most convincing evidence since it is an inherently weak defense which can easily be fabricated. [31] In the instant case, the inconsistencies in the respective testimonies of Bernardino and Victoria vis--vis the testimonies of Catalino and Juan are not minor discrepancies because they militate against the claim of the defense that Juan was at the house of Catalino and saw him until 10:00 in the

evening of July 23, 1992. Because of these inconsistencies, we find it difficult to believe that Juan was indeed present in the house of Catalino on the above-mentioned date. Hence, the only person who could confirm the presence of the appellants in the house of Catalino is Victoria, wife of appellant Bernardino. Victoria testified that she arrived at the house of Catalino around 7:20 in the evening[32] and went home after ten minutes.[33] It was only at 10:00 of the same evening that she again saw her husband, Bernardino, when the latter went home.[34] On the other hand, appellants Catalino and Bernardino testified that they, together with Teodulo, were at Catalinos house from 7:00 until 10:00 in the evening. But no other competent evidence was presented to support their allegations. Thus, the attempt of the defense witnesses to concoct alibi for the appellants is much too obvious to ignore. We have held that alibi becomes less plausible when it is invoked or sought to be crafted by accused themselves and their immediate relatives.[35] Furthermore, Catalino, Bernardino and Juan testified that the distance between Sitio Balatican and Sitio Baliw is approximately ten kilometers. [36] This distance can be traversed by hiking in about 2 to 3 hours.[37] However, Catalino testified that coming from Sitio Baliw, Sitio Balatican may also be reached by riding on a carabao or horse [38], that the road between Sitio Baliw and Sitio Balatican cannot be negotiated by means of a motor vehicle. No evidence was presented to negate the possibility that appellants may have traveled by horse from Sitio Baliw to Sitio Balatican. A distance of ten kilometers which can be traversed by foot in 2 to 3 hours can easily be negotiated in less than an hour when one rides a horse. Hence, for failure to account for their whereabouts between the hours of 7:30 and 10:00 in the evening of July 23, 1992, and for their failure to demonstrate by clear and convincing evidence that it would be physically impossible for them to be present at the scene of the crime when it was committed, appellants alibi must fail. Weak as it is, alibi becomes all the more ineffectual when the accused fails to demonstrate that is was physically impossible for him to be at the crime scene at the time it was committed.[39] Appellants defense of alibi is negated in the face of the positive identification made by prosecution witnesses Rodrigo and Mardie. Well settled is the rule that positive identification of the accused made by an eyewitness prevails over the defense of alibi. [40] In People vs. Hamton[41], we held that: Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The agreement need not be proven by direct evidence; it may be inferred from the conduct of the parties before, during and after the commission of the offense pointing to a joint purpose and design, concerted action and community of interest. Indeed, jurisprudence consistently tells us that conspiracy may be deduced from the mode and manner in which the offense was perpetrated. In the instant case, the prosecution was able to prove conspiracy by establishing that the three appellants together approached, entered the house, and immediately went up the

second floor where the victims were sleeping. Simultaneously, Bernardino and Catalino hacked Syrel while Teodulo hacked Exor. The synchronized acts of the three appellants indubitably point to the conclusion that they are moved by a common design, which is to kill the victims. Even the location of the wounds inflicted on the victims, all on the heads, necks and shoulders are mute but strong physical evidence of their deliberate and concerted efforts to kill the victims, as in fact, they did. An appeal in a criminal case throws the whole case wide open for review; and the appellate court can correct error, though unassigned, that may be found in the appealed judgment.[42] After a careful examination of the records of the case, we find that the trial court erred in not taking into consideration the aggravating circumstances of treachery and dwelling that attended the killing of Syrel and Exor. In the fairly recent case of People vs. Delim[43], we held as follows: Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime. As this Court held: No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant. Article 14, paragraph 16 of the Revised Penal code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the following elements: (a) the employment of means or execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted. In the present case, the prosecution has proven beyond reasonable doubt that the appellants means of killing the victims was deliberately or consciously adopted. Syrel and Exor were sleeping when the appellants attacked them. There is treachery when appellants, who knew exactly where to find the victims, immediately proceeded to the second floor of the house where Syrel and Exor were sleeping at 10:00 in the evening and hacked the two victims to death while they were sleeping. The aggravating circumstance of dwelling is also present in the instant case. Under Article 14, paragraph 3 of the Revised Penal Code, dwelling is aggravating if the crime is committed in the dwelling of the offended party and the latter has not given provocation. As contemplated under the law, dwelling may mean temporary dwelling. [44] Moreover, dwelling may be aggravating even though the victim was not the owner of the house where the crime was committed.[45] In the present case, it is not disputed that the house owned by Pacifico Gualingco where Syrel and Exor were killed was used by the victims as dwelling. [46]

As to the element of provocation, the evidence of the prosecution has sufficiently established that no provocation, which is sufficient and immediate to the commission of the crime, was given by either or both of the victims. However, the aggravating circumstances of abuse of superior strength and nighttime need not be appreciated as these are already absorbed by treachery. [47] At the time when the crime was committed in 1992, murder was punishable by reclusion temporal maximum to death.[48] The presence of an aggravating circumstance would have called for the imposition of the maximum penalty, which is death. However, the imposition of the death penalty was then proscribed by Article III, Section 19 (1) of the 1987 Constitution [49], which reduced death penalties to reclusion perpetua. It was only on December 31, 1993 that R.A. 7659, the law which provides for the reimposition of the death penalty for certain heinous crimes, took effect.[50]Thus, considering that the crime was committed on July 23, 1992 or prior to the effectivity of R.A. 7659,[51] the death penalty may not be imposed in the present case. Acco rdingly, the penalty next higher in degree, which is reclusion perpetua, for each count of murder, was correctly imposed by the trial court. Although damages to the heirs of the deceased victims are not alleged in the Information, it is a settled rule that damages may be awarded. [52] There are two sets of heirs in the present case those of the deceased Syrel Balasabas and those of the deceased Exor Balasabas. Consequently, appellants should be ordered to pay each set of heirs the amount of P50,000.00 as civil indemnity for the death of each of the victims. In view of the testimony of Lita Balasabas that she suffered mental anguish for the death of her sons, Syrel and Exor, we find that the award of moral damages in the amount of P100,000.00 (P50,000.00 for the death of each set of heirs of the victims) is proper and in accordance with prevailing jurisprudence.[53] As to actual damages, while Lita Balasabas testified that they incurred burial and other expenses resulting from the death of Syrel and Exor, no competent evidence was presented to prove her claim.[54] Under Article 2199 of the Civil Code, a party is entitled to compensation only for such pecuniary loss suffered by him as he has duly proved. However, under Article 2224 of the same Code, temperate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. In the present case, the heirs of Syrel and Exor Balasabas clearly incurred funeral and burial expenses. Hence, we find that an award of P50,000.00 or (P25,000.00, for the death of each set of heirs of the victims) by way of temperate damages is justified. [55] WHEREFORE, the decision of the Regional Trial Court of Negros Oriental (Branch 44) finding Catalino Melendres, Jr., Bernardino Kirit and Teodulo Kitay guilty of the crime of MURDER beyond reasonable doubt, imposing the penalty of reclusion perpetua on two counts, is AFFIRMED with MODIFICATION to the effect that appellants are ordered to pay the heirs of Syrel Balasabas and the heirs of Exor Balasabas the sum P100,000.00 (P50,000.00 for each set of heirs) as civil indemnity P100,000.00, as moral damages (P50,000.00 for each set of heirs) andP50,000.00 as temperate damages (P25,000.00 for each set of heirs).

SO ORDERED. G.R. No. L-25643 June 27, 1968

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners, vs. HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo, JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and COLD STORAGE CO., INC., and THE HON. COURT OF APPEALS, respondents. Efrain B. Trenas and Sergio D. Mabunay for petitioners. Ricardo J. Gerochi for respondents. CASTRO, J.: The issue tendered for resolution in this case is whether a wife, who is a co-defendant of her husband in an action, may be examined as a hostile witness by the adverse party under section 6 of Rule 132 of the Rules of Court, without infringing on her marital privilege not to testify against her husband under section 20 (b) of Rule 130. The trial court, presided by the respondent Judge Jesus Rodriguez, ruled in the affirmative and required the wife to appear and testify. The petitioners sued for certiorari but the Court of Appeals dismissed their petition 1 and denied their motion for reconsideration.2 Hence this appeal.3 On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co. in Iloilo, together with C.N. Hodges and Ricardo Gurrea, filed an action in the Court of First Instance of Iloilo for the annulment of a judgment rendered against the La Paz Ice Plant by the Court of First Instance of Manila in civil case 39827. Named as defendants were Marciano C. Roque, in whose favor judgment was rendered, and the spouses Jose Manuel and Paquita Lezama. The complaint alleged that, because of mismanagement by the Lezamas, the La Paz Ice Plant was placed under the receivership of Dineros; that during the pendency of the receivership, Marciano C. Roque brought an action against the La Paz Ice Plant in the Court of First Instance of Manila for the collection of P150,000, which sum he had supposedly lent to it; that summons was served not on the receiver but on the spouses Jose Manuel and Paquita Lezama; and that, through the collusion of the Lezamas, Roque was able to obtain judgment by default against the company. It was claimed that, because the summons was served on Jose Manuel Lezama instead of on the receiver, the Court of First Instance of Manila acquired no jurisdiction over the La Paz Ice Plant and that, therefore, the decision of that court was void.1vvphi1.nt In their answer, the defendant spouses (the herein petitioners), while admitting that the company was placed under receivership, maintained that Jose Manuel Lezama nevertheless remained president of the La Paz Ice Plant and that as such he had authority to receive in behalf of the company the court summons in civil case 39827. They denied entering into collusion with Roque and averred that they did not contest Roque's claim because they knew it to be a

legitimate obligation which the La Paz Ice Plant had incurred pursuant to a resolution of its board of directors. Issues having been joined, the case was thereupon heard. At the hearing Dineros asked the court to issue asubpoena to Paquita Lezama to testify as "a witness summoned by the plaintiffs in accordance with the Rules of Court." The request was granted over the objection of the petitioners who invoked the following provision of the Rules of Court: A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other, or in a criminal case for a crime committed by one against the other.4 This provision deals with two different matters which rest on different grounds of policy: the disqualification of husband and wife to testify in each other's behalf, as well as their privilege not to testify against each other.5 The fundamental theory of the common law is said to be that relationship of the spouses, not their pecuniary interest, is the basis of the disqualification.6 Indeed section 20 of Rule 130 is entitled "Disqualification by reason of ... relationship." On the other hand, while a shelter of emotional reasons has been offered 7 for the privilege, the "true explanation [which] is after all the simplest" 8 and which constitutes "the real and sole strength of the opposition to abolishing the privilege," is the natural repugnance in every fairminded person to compelling a wife or husband to be the means of the other's condemnation and to subjecting the culprit to the humiliation of being condemned by the words of his intimate life partner.9 Here the request for subpoena indicated that Paquita Lezama was to do no more than testify as an adverse party in the case and, indeed, in the light of the allegations both in the complaint and in the answer, the request was apparently one that could reasonably be expected to be made. Thus, the complaint charged 13. That in obtaining the judgment by default in Civil Case No. 39827 of the Court of First Instance of Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants, in gross and evident bad faith, and in fraudulent conspiracy, made it appear that the La Paz Ice Plant & Cold Storage Co., Inc. had obtained a loan of P150,000.00 from defendant Marciano C. Roque thru defendant Jose Manuel Lezama allegedly upon an authority vested upon defendant Jose Manuel Lezama by the alleged Board of Directors of the La Paz Ice Plant & Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of Directors of the said corporation signed by defendant Jose Manuel Lezama and attested to by Benjamin Luis Borja and Paquita B. Lezama and that defendants spouses Jose Manuel Lezama and Paquita B. Lezama had manipulated the books of the corporation by making it appear that such fictitious loan was then in existence.

On the other hand, the answer claimed 13. That the herein defendants specifically deny all the allegations contained in paragraph 13 of the complaint; the truth is, that the herein defendants have not conspired and acted in bad faith with the plaintiff [Marciano C. Roque] in Civil Case No. 39827 of the Court of First Instance of Manila for the rendition of the said judgment referred to therein; for the truth is, that the herein defendants, in their capacities as President-Manager and Secretary of the La Paz Ice Plant & Cold Storage Co., Inc., believing as they believe that the obligation sought to be enforced by said civil action being legitimate and the allegations of the complaint in said Civil Case No. 39827 of the Court of First Instance of Manila are true, they did not deem it wise to contest the same; that the obligation of P150,000.00 of the La Paz Ice Plant & Cold Storage Co., Inc., which the defendant Marciano C. Roque sought to be enforced in Civil Case No. 39827 of the Court of First Instance of Manila was legitimately contracted in accordance with law; that said obligation was duly entered in the books of the corporation and that the said loan is not fictitious; that the amount realized therefrom was spent for the benefit of the said corporation. Thus, while the petitioners denied the charge that the loan was fictitious, they did not deny the allegation that it was Paquita Lezama who, as secretary of the company, signed the minutes of the meeting at which Jose Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as secretary, made the entry in the books of the corporation. It was obviously to test the truth of the assertion that the loan transaction was above board that Dineros, the company receiver, wanted Paquita Lezama on the witness stand, not as a spouse witness "for or against her husband," but rather as an adverse party in the case. It is postulated that a party can make, as it were, such forays into his opponent's position on the strength of section 6 of Rule 132 which provides: Direct examination of unwilling or hostile witnesses. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject-matter of his examination in chief. The basic issue may therefore be restated thus: In this case where the wife is a co-defendant in a suit charging fraud against the spouses, can the wife be compelled to testify as an adverse party witness concerning her participation in the alleged fraud without violating section 20 (b) of Rule 130?

It is argued that the wife may be so compelled but her testimony would be receivable only against her.10 It is even suggested that "each may testify in his or her own behalf, although the testimony may inure to the benefit of the other spouse, or against his or her own interest, although the testimony may also militate against the other spouse."11 Upon the other hand, it is insisted that compelling Paquita Lezama to testify will transgress section 20(b) of Rule 130, especially if her testimony will support the plaintiff's charge. The complaint charges "fraudulent conspiracy" on the part of the spouses and one Marciano C. Roque to make it appear that the La Paz Ice Plant & Cold Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is called upon to testify as an adverse party witness on the basis of her following participation in the alleged fraudulent scheme: "that it was Paquita Lezama who as Secretary of the company signed the minutes of the meeting during which Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as Secretary, made the entry in the books of the corporation." Evidently, Paquita Lezama will be asked to testify on what actually transpired during the meeting and will be asked questions on the matter of the veracity or falsity of the entry in the books of the corporation. Whether her testimony will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her against her husband. The interests of husband and wife in this case are necessarily interrelated. Testimony adverse to the wife's own interests would tend to show the existence of collusive fraud between the spouses and would then work havoc upon their common defense that the loan was not fictitious. There is the possibility, too, that the wife, in order to soften her own guilt, if guilty she is, may unwittingly testify in a manner entirely disparaging to the interests of the husband. Because of the unexpensive wording of the rule which provides merely that the wife cannot be examined "for or against her husband without his consent," it is further argued that "when husband and wife are parties to an action, there is no reason why either may not be examined as a witness for or against himself or herself alone," and his or her testimony could operate only against himself or herself.12 Even if such view were generally acceptable as an exception to the rule, or even as a separate doctrine, it would be inapplicable in this case where the main charge is collusive fraud between the spouses and a third person, and the evident purpose of examination of the wife is to prove that charge. Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the adverse party as a hostile witness when both spouses are parties to the action, either the interests of the spouses are separate or separable, or the spouse offered as a witness is merely a formal or nominal party.13 The final point urged upon us is that to prevent one spouse from testifying would encourage alliance of husband and wife as an instrument of fraud; for then what better way would there be to prevent discovery than to make a co-conspirator in fraud immune to the most convenient

mode of discovery available to the opposite party? This argument overlooks the fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the rule which precludes the husband or the wife from becoming the means of the other's condemnation. The said rule of discovery should therefore not be expanded in meaning or scope as to allow examination of one's spouse in a situation where this natural repugnance obtains. It may not be amiss to state in passing that the respondent Dineros has not demonstrated that there is no evidence available to him other than the Lezamas' testimony to prove the charge recited in the complaint.1wph1.t ACCORDINGLY, the resolutions appealed from are versed, and this case is ordered remanded to the court of origin for further proceedings in accordance with law. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Angeles, and Fernando, JJ., concur. Makalintal and Zaldivar, JJ., took no part. Footnotes
1

Resolution 52, CA-G.R. 36718-R, Nov. 24, 1965. Resolution 12, CA-G.R. 36718-R, Jan. 6, 1966.

While the appeal was pending in this Court, the receivership was dissolved and, consequently, Jose S. Dineros, who was originally made a party respondent, was dropped and the La Paz Ice Plant & Cold Storage Co. substituted in his stead. Resolution, Oct. 26, 1966.
4

Rule 130, sec. 20(b).

See 8 J. Wigmore, Evidence, sec. 2227 at 211, sec. 2228 at 216 (McNaughton rev. 1961) [hereafter cited as 8 Wigmore].
6

2 J. Wigmore, Evidence, sec. 603 at 737 (3d ed. 1940) [hereafter cited as 2 Wigmore].

For instance, in United States v. Concepcion, 31 Phil. 182 (1915) the basis of the rule is said to be the "considerations of public policy growing out of the marital relation." Said the Court: "To allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital relation." At 187. On the other hand, in People v. Francisco, 78 Phil. 694 (1947), the Court gave as reasons for the privilege the following: "First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and fourth, because, where a want

of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other." At 703.
8

8 Wigmore, sec. 2227 at 212. Id., sec. 2228 at 217. See 8 Wigmore 227. 97 C.J.S. 477. See Menzel vs. Tubbs, et al., 53 NW 653, 656 cited in 58 Am. Jur. 129. D I V I S I O N

10

11

12

T H I R D

MAXIMO ALVAREZ, Petitioner,

G.R. No. 143439 Present: PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ.

- versus -

SUSAN RAMIREZ, Respondent.

Promulgated:

October 14, 2005 x---------------------------------------------------------------------------------------------x D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled SUSAN

RAMIREZ, petitioner, versus, HON. BENJAMIN M. AQUINO, JR., as JUDGE RTC, MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents. Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933MN for arson[3] pending before the Regional Trial Court, Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner. respondent. On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the first witness against petitioner, her husband. objection. Esperanza testified as follows: ATTY. ALCANTARA: We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor. COURT: Swear in the witness. xxx ATTY. MESIAH: (sic) Your Honor, we are offering the testimony of this witness for the purpose of proving that the accused Maximo Alvarez committed all the elements of the crime being charged particularly that accused Maximo Alvarez pour on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro Manila, the house owned by his sister-in-law Susan Ramirez; that accused Maximo Alvarez after pouring the gasoline on the door of the house of Susan Ramirez ignited and set it on fire; that the accused at the time he Petitioner and his counsel raised no He is the husband of Esperanza G. Alvarez, sister of

successfully set the house on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez, the members of the family as well as Esperanza Alvarez, the estranged wife of the accused; that as a consequence of the accused in successfully setting the fire to the house of Susan Ramirez, the door of said house was burned and together with several articles of the house, including shoes, chairs and others. COURT: You may proceed. xxx DIRECT EXAMINATION ATTY. ALCANTARA: xxx Q: A: When you were able to find the source, incidentally what was the source of that scent? When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister (and witness pointing to the person of the accused inside the court room). For the record, Mrs. Witness, can you state the name of that person, if you know? He is my husband, sir, Maximo Alvarez. If that Maximo Alvarez you were able to see, can you identify him? Yes, sir. If you can see him inside the Court room, can you please point him? Witness pointing to a person and when asked to stand and asked his name, he gave his name as Maximo Alvarez.[4]

Q: A: Q: A: Q: A:

In the course of Esperanzas direct testimony against petitioner, the latter showed uncontrolled emotions, prompting the trial judge to suspend the proceedings.

On June 30, 1999, petitioner, through counsel, filed a motion[5] to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification. Respondent filed an opposition [6] to the motion. Pending resolution of the motion, the trial court directed the prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the records. [7] The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19, 1999.[8] This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN, to file with the Court of Appeals a petition for certiorari[9]with application for preliminary injunction and temporary restraining order. [10] On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court.

Hence, this petition for review on certiorari.

The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No. 19933-MN.

Section 22, Rule 130 of the Revised Rules of Court provides: Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against

the other, or in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants.

The reasons given for the rule are:

1. 2.

There is identity of interests between husband and wife; If one were to testify for or against the other, there is consequent danger of perjury;

3.

The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and

4.

Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other. [11]

But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home. [12]

In Ordoo vs. Daquigan,[13] this Court held:

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said: The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other.

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes. As correctly observed by the Court of Appeals: The act of private respondent in setting fire to the house of his sister-inlaw Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. (People v. Castaeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect. At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco[14]), it was the latter himself who gave rise to its necessity. WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs against petitioner. SO ORDERED. ANGELINA SANDOVAL-GUTIER Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-39012 January 31, 1975 AVELINO ORDOO, petitioner, vs. HON. ANGEL DAQUIGAN, presiding Judge of the Court of First Instance of La Union, Branch I and CONRADO V. POSADAS, First Assistant Provincial Fiscal of La Union and the PEOPLE OF THE PHILIPPINES, respondents.

Pedro G. Peralta for petitioner. Conrado V. Posadas for and in behalf of other respondents.

AQUINO, J.: Avelino Ordoo was charged in the municipal court of San Gabriel, La Union with having raped his daughter, Leonora, on October 11, 1970. The verified complaint dated November 7, 1973 was signed by the twenty four year old victim (Criminal Case No. 104). In support of that complaint, Catalina Balanon Ordoo, the mother of Leonora, executed a sworn statement wherein she disclosed that on that same date, October 11th, Leonora had apprised her of the outrage but no denunciation was filed because Avelino Ordoo threatened to kill Leonora and Catalina (his daughter and wife, respectively) if they reported the crime to the police. Catalina Ordoo in her sworn statement further revealed that her husband had also raped their other daughter, Rosa, on March 25 and April 7, 1973. He was charged in court with that offense. Catalina Ordoo said that the rape committed by Avelino Ordoo against Leonora was mentioned during the investigation and trial of Avelino Ordoo for the rape committed against Rosa Ordoo. Catalina's statement on this point is as follows: Q Why did you not file the complaint against your husband concerning the incident involving Leonora Ordoo? A We Also narrated the incident during the investigation in the Fiscal's Office and also when I testified in court in the case of my daughter Rosa Ordoo but then my daughter Leonora Ordoo was still in Manila, sir. During the preliminary investigation of the rape committed against Leonora, Catalina manifested that she was no longer afraid to denounce Avelino Ordoo because he was already in jail for having raped Rosa Ordoo. The case against Avelino Ordoo, where Leonora Ordoo was the complainant, was elevated to the Court of First Instance of La Union, San Fernando, Branch (Criminal Case No. 356). On May 29, 1974 the Fiscal presented Catalina Ordoo as the second prosecution witness. After she had stated her personal circumstances, the defense counsel objected to her competency. He invoked the marital disqualification rule found in Rule 130 of the Rules of Court which provides:

Sec. 20. Disqualification by reason of interest or relationship. The following persons cannot testify as to matters in which they are interested, directly or indirectly, as herein enumerated: xxx xxx xxx (b) A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other or in a criminal case for a crime committed by one against the other; xxx xxx xxx Counsel claimed that Avelino Ordoo had not consented expressly or impliedly to his wife's testifying against him. The trial court overruled the objection. After the denial of Avelino Ordoo's motion for the reconsideration of the adverse ruling, he filed the instant action for certiorari and prohibition. He was allowed to sue in forma pauperis. The issue is whether the rape committed by the husband against his daughter is a crime committed by him against his wife within the meaning of the exception found in the marital disqualification rule. Should the phrase "in a criminal case for a crime committed by one against the other" be restricted to crimes committed by one spouse against the other, such as physical injuries, bigamy, adultery or concubinage, or should it be given a latitudinarian interpretation as referring to any offense causing marital discord? There is a dictum that "where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home" (People vs. Francisco, 78 Phil. 694, 704). In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the husband who was charged with having killed his son and who testified that it was the wife who killed their son. We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attack or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other. Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in the law of evidence the rape perpetrated by the father against his daughter is a crime committed by him against his wife (the victim's mother). * That conclusion is in harmony with the practices and traditions of the Filipino family where, normally, the daughter is close to the mother who, having breast-fed and reared her offspring, is always ready to render her counsel and assistance in time of need. Indeed, when the daughter is in distress or suffers moral or physical pain, she usually utters the word Inay (Mother) before she invokes the name of the Lord. Thus, in this case, when Avelino Ordoo, after having raped his daughter Leonora in the early morning of October 11, 1970, tried to repeat the beastly act in the evening of that date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted. That the rape of the daughter by the father, an undeniably abominable and revolting crime with incestuous implications, positively undermines the connubial relationship, is a proposition too obvious to require much elucidation. In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife's natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself". The court adopted the interpretation that "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual particularly and directly injured or affected by the crime for which the husband is being prosecuted (See Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232). In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision that husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter. In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a case where he was prosecuted for incest committed against their eleven-year old

daughter because incest is a "crime committed against the wife". (See Owens vs. State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs. Segura, 60 Phil. 933). The trial court did not err in holding that Catalina Ordoo could testify against her husband, Avelino Ordoo, in the case where he is being tried for having raped their daughter, Leonora. WHEREFORE, the petition for certiorari and prohibition is dismissed. No costs. SO ORDERED. Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Makasiar, Esguerra, Fernandez and Muoz Palma, JJ., concur. Antonio, J., is on leave.

Footnotes * As noted by Wigmore, the marital disqualification rule consists of two parts: (1) the incapacity of one spouse to testify for the other, a disqualification designed to obviate perjury, and (2) the privilege of one spouse not to testify against the other, a right designated to prevent domestic disunion and unhappiness (U.S. vs. Concepcion, 31 Phil. 182,187; 2 Wigmore on Evidence 731). Wigmore notes that the privilege has no longer any good reason for retention. "In an age which has so far rationalized, depolarized, and de-chivalrized the marital relation and the spirit of Femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the interest anachronism, in legal theory, and an indefensible obstruction to truth, in practice". After noting that some States had abolished the privilege, the American Bar Association's Committee on the improvement of the Law of Evidence in 1937-38 recommended its abolition (8 Wigmore on Evidence 232). Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-46306 February 27, 1979

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MARIANO C. CASTAEDA, JR., as Judge of the Court of First Instance of Pampanga, Branch III, and BENJAMIN F. MANALOTO, respondents. Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner. Moises Sevilla Ocampo for private petitioner. Cicero J. Punzalan for respondent.

SANTOS, J.: On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private respondent Benjamin Manaloto was charged before the Court of First Instance of Pampanga, presided by respondent Judge, Hon. Mariano C. Castaneda Jr., with the crime of Falsification of Public Document committed, according to the Information, as follows: That on or about the 19th day of May, 1975, in the Municipality of San Fernando, province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named a BENJAMIN F. MANALOTO, with deliberate intent to commit falsification, did then and there willfully, unlawfully and feloniously counterfeit, imitate and forge the signature of his spouse Victoria M. Manaloto in a deed of sale executed by said accused wherein he sold a house and lot belonging to the conjugal partnership of said spouse in favor of Ponciano Lacsamana under Doc. No. 1957, Page No. 72, Book No. LVII, Series of 1975, notarized by Notary Public Abraham Pa. Gorospe, thereby making it appear that his spouse Victoria M. Manaloto gave her marital consent to said sale when in fact and in truth she did not. 2 At the trial, the prosecution called the complaint-wife to the witness stand but the defense moved to disqualify her as a witness, invoking Sec. 20, Rule 130 of the Revised Rules Of Court which provides: SEC. 20. Disqualification by reason of interest or relationship The following persons cannot testify as to matters in which they are interested, directly or indirectly as herein enumerated. xxx xxx xxx (b) A husband can not be examined for or at his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one

against the other or in a criminal case for a crime committed by one against the other. The prosecution opposed said motion to disquality on the ground that the case falls under the exception to the rule, contending that it is a "criminal case for a crime committed by one against the other." Notwithstanding such opposition, respondent Judge granted the motion, disqualifying Victoria Manaloto from testifying for or against her husband, in an order dated March 31, 1977. A motion for reconsideration petition was filed but was denied by respondent Judge in an order dated May 19, 1977. Hence, this petition for certiorari file by the office of the Provincial Fiscal, on behalf of the People of the Philippines, seeking set aside the aforesaid order of the respondent Judge and praying that a preliminary injunction or a ternporary restraining order be issued by this Court enjoining said judge from further proceeding with the trial of aforesaid Criminal Case No. 1011. On June 20, 1977, this Court resolved (a) to issue a temporary restraining order, and (b) to require the Solicitor General to appear as counsel for the petitioner. 3 The Office of the Solicitor General filed its Notice of Appearance on June 27, 1977, 4 and its Memorandum in support of the Petition on August 30, 1977. 5 The respondents filed their Memorandum on September 5, 1977. 6 Whereupon, the case was considered submitted for decision. 7 From the foregoing factual and procedural antecedents emerges the sole issues determinative of the instant petition, to wit: Whether or not the criminal case for Falsification of Public Document filed against herein private respondent Benjamin F. Manaloto who allegedly forged the signature of his wife, Victoria M. Manaloto, in a deed of sale, thereby making it appear that the latter gave her marital consent to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not may be considered as a criminal case for a crime committed by a husband against his wife and, therefore, an exception to the rule on marital disqualification. We sustain petitioner's stand that the case is an exception to the marital disqualification rule, as a criminal case for a crime committed by the accused-husband against the witness-wife. 1. The act complained of as constituting the crime of Falsification of Public Document is the forgery by the accused of his wife's signature in a deed of sale, thereby making it appear therein that said wife consented to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not. It must be noted that had the sale of the said house and lot, and the signing of the wife's name by her husband in the deed of sale, been made with the consent of the wife, no crime could have been charged against said husband Clearly, therefore, it is the husband's breach of his wife's confidence which gave rise to the offense charged. And it is this same breach of trust which prompted the wife to make the necessary complaint with the Office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal case with the Court of First Instance of Pampanga. To rule, therefore, that

such criminal case is not one for a crime committed by one spouse against the other is to advance a conclusion which completely disregards the factual antecedents of the instant case. 2. This is not the first time that the issue of whether a specific offense may be classified as a crime committed by one spouse against the other is presented to this Court for resolution. Thus, in the case of Ordoo v. Daquigan, 8this Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in resolving the issue, stating that: We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein the court said: The rule that the injury must amount to a physical wrong upon the is too narrow; and the rule that any offense remotely or indirectly affecting domestic within the exception is too broad. The better rule is that, WHEN AN OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN THE EXCEPTION to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other. Applying the foregoing criterion in said case of Ordoo v. Daquigan this Court held that the rape committed by the husband of the witness-wife against their daughter was a crime committed by the husband against his wife. Although the victim of the crime committed by the accused in that can was not his wife but their daughter, this Court, nevertheless, applied the exception for the reason that said criminal act "Positively undermine(d) the connubial relationship. 9 With more reason must the exception apply to the instant case where the victim of the crime and the person who stands to be directly prejudiced by the falsification is not a third person but the wife herself. And it is undeniable that the act comp of had the effect of directly and vitally impairing the conjugal relation. This is apparent not only in the act Of the wife in personally lodging her complaint with the Office of the Provincial Fiscal, but also in her insistent efforts 10 in connection with the instant petition, which seeks to set aside the order disqualified her from testifying against her husband. Taken collectively, the actuations of the witness-wife underacore the fact that the martial and domestic relations between her and the accusedhusband have become so strained that there is no more harmony to be preserved said nor peace and tranquility which may be disturbed. In such a case, as We have occasion to point out in previous decisions, "identity of interests disappears and the consequent danger of perjury based on that Identity is nonexistent. Likewise, in such a situation, the security and confidence of private life which the law aims at protecting will be nothing but Ideals which, through their absence, merely leave a void in the unhappy home. 11 Thus, there is no reason to apply the martial disqualification rule. 3. Finally, overriding considerations of public policy demand that the wife should not be disqualified from testifying against her husband in the instant case. For, as aptly observed by the Solicitor General," (t)o espouse the contrary view would spawn the dangerous precedent of

a husband committing as many falsifications against his wife as he could conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice her in secret all with unabashed and complete impunity. IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March 31, 1977, disqualifying Victoria Manaloto from testifying for or against her husband, Benjamin Manaloto, in Criminal Case No. 1011, as well as the order dated May 19, 1977, denying the motion for reconsideration are hereby SET ASIDE. The temporary restraining order issued by this Court is hereby lifted and the respondent Judge is hereby ordered to proceed with the trial of the case, allowing Victoria Manaloto to testify against her husband. SO ORDERED. Fernando (Chairman), Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.

#Footnotes 1 See Annexes "A", "B", and B-1" of the Petition (Rollo, pp- 11-15). 2 Annex "C" of the Petition (Rollo, pp. 16-17). 3 Rollo, p. 39. 4 Ibid., p. 44. 5 Ibid., p. 76. 6 Ibid., p. 87. 7 Ibid., p. 99. 8 G.R. No. L-39012, January 31, 1975,62 SCRA 270, at 273. 9 Id., p. 274. 10 Victoria Manaloto, through her counsel assisted the Provincial Fiscal of Pampanga in filling the instant petition for certiorari (rollo, pp. 9-10). Furthermore, she file on Aug. 22, 1977 a memorandum in support of the petition (rollo, pp. 68-74), and, on Dec. 28, 1977, a pleading entitled Chronologically Effected Observations and Circumstances in Support of or to Butress Memorandum for Private Petitioner Victoria M. Manaloto, dated August 18,

1977 informing this Court that the trouble in her marital relation with her husband the herein private respondent is "beyond repair." (rollo pp- 105- 108). 11 People vs. Fransisco 78 Phil 694, 704 (cited in Ordono vs. Daquigan, supra.).

[G.R. No. 143340. August 15, 2001]

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners, vs. LAMBERTO T. CHUA, respondent. DECISION GONZAGA-REYES, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of the Decision[1] of the Court of Appeals dated January 31, 2000 in the case entitled Lamberto T. Chua vs. Lilibeth Sunga Chan and Cecilia Sunga and of the Resolution dated May 23, 2000 denying the motion for reconsideration of herein petitioners Lilibeth Sunga Chan and Cecilia Sunga (hereafter collectively referred to as petitioners). The pertinent facts of this case are as follows: On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia), daughter and wife, respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for Winding Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and Damages with Writ of Preliminary Attachment with the Regional Trial Court, Branch 11, Sindangan, Zamboanga del Norte. Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience, respondent and Jacinto allegedly agreed to register the business name of their partnership, SHELLITE GAS APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a sole proprietorship. Respondent allegedly delivered his initial capital contribution of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his counterpart contribution, with the intention that the profits would be equally divided between them. The partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a sister of the wife of respondent, Erlinda Sy. As compensation, Jacinto would receive a managers fee or remuneration of 10% of the gross profit and Josephine would receive 10% of the net profits, in addition to her wages and other remuneration from the business. Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation went quite well and was profitable. Respondent claimed that he could attest to the

success of their business because of the volume of orders and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell Petroleum Corporation. While Jacinto furnished respondent with the merchandise inventories, balance sheets and net worth of Shellite from 1977 to 1989, respondent however suspected that the amount indicated in these documents were understated and undervalued by Jacinto and Josephine for their own selfish reasons and for tax avoidance. Upon Jacintos death in the later part of 1989, his surviving wife, petitioner Cecilia and particularly his daughter, petitioner Lilibeth, took over the operations, control, custody, disposition and management of Shellite without respondents consent. Despite respondents repeated demands upon petitioners for accounting, inventory, appraisal, winding up and restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth allegedly continued the operations of Shellite, converting to her own use and advantage its properties. On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out of alibis and reasons to evade respondents demands, she disb ursed out of the partnership funds the amount of P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed respondent that the P200,000.00 represented partial payment of the latters share in the partnership, with a promise that the former would make the complete inventory and winding up of the properties of the business establishment. Despite such commitment, petitioners allegedly failed to comply with their duty to account, and continued to benefit from the assets and income of Shellite to the damage and prejudice of respondent. On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities and Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zambaonga del Norte had jurisdiction over the action. Respondent opposed the motion to dismiss. On January 12, 1993, the trial court finding the complaint sufficient in form and substance denied the motion to dismiss. On January 30, 1993, petitioners filed their Answer with Compulsory Counterclaims, contending that they are not liable for partnership shares, unreceived income/profits, interests, damages and attorneys fees, that respondent does not have a cause of action against them, and that the trial court has no jurisdiction over the nature of the action, the SEC being the agency that has original and exclusive jurisdiction over the case. As counterclaim, petitioner sought attorneys fees and expenses of litigation. On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the claim for winding up of partnership affairs, accounting and recovery of shares in partnership affairs, accounting and recovery of shares in partnership assets /properties should be dismissed and prosecuted against the estate of deceased Jacinto in a probate or intestate proceeding. On August 16, 1993, the trial court denied the second motion to dismiss for lack of merit.

On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus with the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the motion to dismiss. On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial Conference. On December 13, 1993, the trial court granted the motion to suspend pre-trial conference. On November 15, 1994, the Court of Appeals denied the petition for lack of merit. On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner, as petitioners failed to show that a reversible error was committed by the appellate court."[2] On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was remanded to the trial court on April 26, 1995. On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of the case on January 17, 1996. Respondent presented his evidence while petitioners were considered to have waived their right to present evidence for their failure to attend the scheduled date for reception of evidence despite notice. On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive portion of the Decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, as follows: (1) DIRECTING them to render an accounting in acceptable form under accounting procedures and standards of the properties, assets, income and profits of the Shellite Gas Appliance Center since the time of death of Jacinto L. Sunga, from whom they continued the business operations including all businesses derived from the Shellite Gas Appliance Center; submit an inventory, and appraisal of all these properties, assets, income, profits, etc. to the Court and to plaintiff for approval or disapproval; (2) ORDERING them to return and restitute to the partnership any and all properties, assets, income and profits they misapplied and converted to their own use and advantage that legally pertain to the plaintiff and account for the properties mentioned in pars. A and B on pages 4-5 of this petition as basis; (3) DIRECTING them to restitute and pay to the plaintiff shares and interest of the plaintiff in the partnership of the listed properties, assets and good will (sic) in schedules A, B and C, on pages 4-5 of the petition; (4) ORDERING them to pay the plaintiff earned but unreceived income and profits from the partnership from 1988 to may 30, 1992, when the plaintiff learned of the closure of the store the sum of P35,000.00 per month, with legal rate of interest until fully paid;

(5) ORDERING them to wind up the affairs of the partnership and terminate its business activities pursuant to law, after delivering to the plaintiff all the interest, shares, participation and equity in the partnership, or the value thereof in money or moneys worth, if the properties are not physically divisible; (6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral and exemplary damages; and, (7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorneys (sic) and P25,00.00 as litigation expenses. NO special pronouncements as to COSTS. SO ORDERED.[3] On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case to the Court of Appeals. On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the Decision reads: WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in all respects.[4] On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner. Hence, this petition wherein petitioner relies upon the following grounds: 1. The Court of Appeals erred in making a legal conclusion that there existed a partnership between respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the latters invitation and offer and that upon his death the partnership assets and business were taken over by petitioners. 2. The Court of Appeals erred in making the legal conclusion that laches and/or prescription did not apply in the instant case. 3. The Court of Appeals erred in making the legal conclusion that there was competent and credible evidence to warrant the finding of a partnership, and assuming arguendo that indeed there was a partnership, the finding of highly exaggerated amounts or values in the partnership assets and profits. [5] Petitioners question the correctness of the finding of the trial court and the Court of Appeals that a partnership existed between respondent and Jacinto from 1977 until Jacintos death. In the absence of any written document to show such partnership between respondent and Jacinto, petitioners argue that these courts were proscribed from hearing the testimonies of respondent and his witness, Josephine, to prove the alleged partnership three years after

Jacintos death. To support this argument, petitioners invo ke the Dead Mans Statute or Survivorship Rule under Section 23, Rule 130 of the Rules of Court that provides: SEC. 23. Disqualification by reason of death or insanity of adverse party.-- Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person, or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego, Josephine, should not have been admitted to prove certain claims against a deceased person (Jacinto), now represented by petitioners. We are not persuaded. A partnership may be constituted in any form, except where immovable property or real rights are contributed thereto, in which case a public instrument shall be necessary. [6] Hence, based on the intention of the parties, as gathered from the facts and ascertained from their language and conduct, a verbal contract of partnership may arise. [7] The essential points that must be proven to show that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in the profits. [8] Understandably so, in view of the absence of a written contract of partnership between respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial evidence to prove said partnership. The crucial issue to settle then is whether or not the Dead Mans Statute applies to this case so as to render inadmissible responde nts testimony and that of his witness, Josephine. The Dead Mans Statute provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.[9] But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that: 1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. 2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; 3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind; 4. His testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind. [10] Two reasons forestall the application of the Dead Mans Statute to this case.

First, petitioners filed a compulsory counterclaim[11] against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the Dead Mans Statute. [12] Well entrenched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim. [13] Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased.[14] Second, the testimony of Josephine is not covered by the Dead Mans Statute for the simple reason that she is not a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners insistence that Josephine is the alter ego of respondent does not make her an assignor because the term assignor of a party means assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen. [15] Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff. We are not convinced by petitioners allegation that Josephines testimony lacks probative value because she was allegedly coerced by respondent, her brother-in-law, to testify in his favor. Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. We fail to see how we can conclude from this candid admission that Josephines testimony is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses.[16] Petitioners reliance alone on the Dead Mans Statute to defeat respondents claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of a partnership, albeit an informal one. Notably, petitioners did not present any evidence in their favor during trial. By the weight of judicial precedents, a factual matter like the finding of the existence of a partnership between respondent and Jacinto cannot be inquired into by this Court on review. [17] This Court can no longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh them to ascertain if the trial court and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other. [18] It must be also pointed out that petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot now turn to this Court to question the admissibility and authenticity of the documentary evidence of respondent when petitioners failed to object to the admissibility of the evidence at the time that such evidence was offered. [19]

With regard to petitioners insistence that laches and/or prescription should have extinguished respondents claim, we agree with the trial court and the Court of Appeals that the action for accounting filed by respondent three (3) years after Jacintos death was well within the prescribed period. The Civil Code provides that an action to enforce an oral contract prescribes in six (6) years[20] while the right to demand an accounting for a partners interest as against the person continuing the business accrues at the date of dissolution, in the absence of any contrary agreement.[21] Considering that the death of a partner results in the dissolution of the partnership[22], in this case, it was after Jacintos death that respondent as the surviving partner had the right to an account of his interest as against petitioners. It bears stressing that while Jacintos death dissolved the partnership, the dissolution did not immediately terminate the partnership. The Civil Code[23] expressly provides that upon dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business, culminating in its termination.[24] In a desperate bid to cast doubt on the validity of the oral partnership between respondent and Jacinto, petitioners maintain that said partnership that had an initial capital of P200,000.00 should have been registered with the Securities and Exchange Commission (SEC) since registration is mandated by the Civil Code. True, Article 1772 of the Civil Code requires that partnerships with a capital of P3,000.00 or more must register with the SEC, however, this registration requirement is not mandatory. Article 1768 of the Civil Code[25] explicitly provides that the partnership retains its juridical personality even if it fails to register. The failure to register the contract of partnership does not invalidate the same as among the partners, so long as the contract has the essential requisites, because the main purpose of registration is to give notice to third parties, and it can be assumed that the members themselves knew of the contents of their contract.[26] In the case at bar, non-compliance with this directory provision of the law will not invalidate the partnership considering that the totality of the evidence proves that respondent and Jacinto indeed forged the partnership in question. WHEREFORE, in view of the foregoing, the petition is DENIED and the appealed decision is AFFIRMED. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

[G.R. No. 127745. April 22, 2003]

FELICITO G. SANSON, CELEDONIA SANSON-SAQUIN, ANGELES A. MONTINOLA, EDUARDO A. MONTINOLA, JR., petitioners-appellants, vs.HONORABLE COURT OF APPEALS, FOURTH DIVISION and MELECIA T. SY, as Administratrix of the Intestate Estate of the Late Juan Bon Fing Sy, respondents-appellees. DECISION

CARPIO MORALES, J.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Court of Appeals Decision of May 31, 1996 and Resolution of December 9, 1996. On February 7, 1990, herein petitioner-appellant Felicito G. Sanson (Sanson), in his capacity as creditor, filed before the Regional Trial Court (RTC) of Iloilo City a petition, docketed as Special Proceedings No. 4497, for the settlement of the estate of Juan Bon Fing Sy (the deceased) who died on January 10, 1990. Sanson claimed that the deceased was indebted to him in the amount of P603,000.00 and to his sister Celedonia Sanson-Saquin (Celedonia) in the amount of P360,000.00.[1] Petitioners-appellants Eduardo Montinola, Jr. and his mother Angeles Montinola (Angeles) later filed separate claims against the estate, alleging that the deceased owed them P50,000.00 and P150,000.00, respectively.[2] By Order of February 12, 1991, Branch 28 of the Iloilo RTC to which the petition was raffled, appointed Melecia T. Sy, surviving spouse of the deceased, as administratrix of his estate, following which she was issued letters of administration. [3] During the hearing of the claims against the estate, Sanson, Celedonia, and Jade Montinola, wife of claimant Eduardo Montinola, Jr., testified on the transactions that gave rise thereto, over the objection of the administratrix who invoked Section 23, Rule 130 of the Revised Rules of Court otherwise known as the Dead Mans Statute which reads: SEC. 23. Disqualification by reason of death or insanity of adverse party.Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (Emphasis supplied) Sanson, in support of the claim of his sister Celedonia, testified that she had a transaction with the deceased which is evidenced by six checks[4] issued by him before his death; before the deceased died, Celedonia tried to enforce settlement of the checks from his (the deceaseds) son Jerry who told her that his father would settle them once he got well but he never did; and after the death of the deceased, Celedonia presented the checks to the bank for payment but were dishonored[5] due to the closure of his account.[6] Celedonia, in support of the claim of her brother Sanson, testified that she knew that the deceased issued five checks[7] to Sanson in settlement of a debt; and after the death of the deceased, Sanson presented the checks to the bank for payment but were returned due to the closure of his account.[8] Jade, in support of the claims of her husband Eduardo Montinola, Jr. and mother-in-law Angeles, testified that on separate occasions, the deceased borrowed P50,000 and P150,000 from her husband and mother-in-law, respectively, as shown by three checks issued by the

deceased,[9] two to Angeles and the other[10] to Eduardo Montinola, Jr.; before the deceased died or sometime in August 1989, they advised him that they would be depositing the checks, but he told them not to as he would pay them cash, but he never did; and after the deceased died on January 10, 1990, they deposited the checks but were dishonored as the account against which they were drawn was closed, [11] hence, their legal counsel sent a demand letter[12] dated February 6, 1990 addressed to the deceaseds heirs Melicia, James, Mini and Jerry Sy, and Symmels I & II but the checks have remained unsettled. [13] The administratrix, denying having any knowledge or information sufficient to form a belief as to the truth of the claims, nevertheless alleged that if they ever existed, they had been paid and extinguished, are usurious and illegal and are, in any event, barred by prescription. [14] And she objected to the admission of the checks and check return slips-exhibits offered in evidence by the claimants upon the ground that the witnesses who testified thereon are disqualified under the Dead Mans Statute. Specifically with respect to the checks-exhibits identified by Jade, the administratrix asserted that they are inadmissible because Jade is the daughter-in-law of claimant Angeles and wife of claimant Eduardo Montinola, Jr., hence, she is covered by the above-said rule on disqualification. At all events, the administratrix denied that the checks-exhibits were issued by the deceased and that the return slips were issued by the depository/clearing bank. [15] After the claimants rested their case, the administratrix filed four separate manifestations informing the trial court that she was dispensing with the presentation of evidence against their claims.[16] Finding that the Dead Mans Statute does not apply to the witnesses who testified in support of the subject claims against the estate, the trial court issued an Order of December 8, 1993,[17]the dispositive portion of which reads: WHEREFORE, Judicial Administratrix Melecia T. Sy, is hereby ordered, to pay, in due course of administration, creditors-claimants Felicito G. Sanson, in the amount of P603,500.00; Celedonia S. Saquin, in the amount of P315,000.00; [18] Angeles A. Montinola, in the amount of P150,000.00 and Eduardo Montinola, Jr., in the amount of P50,000.00, from the assets and/or properties of the above-entitled intestate estate. On appeal by the administratrix upon the following assignment of errors: I. THE LOWER COURT ERRED IN NOT DISMISSING THE CLAIM[S] FOR FAILURE TO PAY THE FILING FEES THEREON II.

THE LOWER COURT ERRED IN NOT DISMISSING THE CLAIM[S] BECAUSE [THEY ARE] ALREADY BARRED BY THE LAW OF LIMITATIONS OR STATUTE OF NON-CLAIMS III. THE LOWER COURT ERRED IN NOT HOLDING THAT CLAIMANT[S] EVIDENCE OF THE CLAIM IS INCOMPETENT UNDER THE DEAD MANS STATUTE, AND INADMISSIBLE IV. THE ALLEGED CHECKS ARE INADMISSIBLE AS PRIVATE DOCUMENTS, [19] the Court of Appeals set aside the December 8, 1993 Order of the trial court, by Decision of May 31, 1996, disposing as follows: WHEREFORE, the order appealed from is hereby set aside and another order is entered dismissing the claims of: 1. Felicito G. Sanson, in the amount of P603,500.00; 2. Celdonia S. Saquin, in the amount of P315,000.00; [20] 3. Angeles A. Montinola, in the amount of P150,000.00; and 4. Eduardo Montinola, Jr., in the amount of P50,000.00 against the estate of the deceased JUAN BON FING SY. No pronouncement as to costs. SO ORDERED. (Underscoring supplied) The claimants Motion for Reconsideration[21] of the Court of Appeals decision having been denied by Resolution of December 9, 1996,[22] they filed the present petition anchored on the following assigned errors: FIRST ASSIGNED ERROR RESPONDENT COURT OF APPEALS, 4TH DIVISION, ERRED IN FINDING THAT THE TESTIMONY OF JADE MONTINOLA IS INSUFFICIENT TO PROVE THE CLAIMS OF CLAIMANTS ANGELES A. MONTINOLA AND EDUARDO A. MONTINOLA, JR.. SECOND ASSIGNED ERROR

RESPONDENT COURT OF APPEALS, 4TH DIVISION, ERRED IN FINDING THAT CLAIMANT FELICITO G. SANSON IS DISQUALIFIED TO TESTIFY [ON] THE CLAIM OF CELEDONIA SANSON-SA[Q]UIN AND VI[C]E VERSA. (Underscoring in the original)[23] With respect to the first assigned error, petitioners argue that since the administratrix did not deny the testimony of Jade nor present any evidence to controvert it, and neither did she deny the execution and genuineness of the checks issued by the deceased (as well as the check return slips issued by the clearing bank), it was error for the Court of Appeals to find the evidence of the Montinolas insufficient to prove their claims. The administratrix counters that the due execution and authenticity of the checks-exhibits of the Montinolas were not duly proven since Jade did not categorically state that she saw the filling up and signing of the checks by the deceased, hence, her testimony is self-serving; besides, as Jade had identical and unitary interest with her husband and mother-in-law, her testimony was a circumvention of the Dead Mans Statute. [24] The administratrixs counter-argument does not lie. Relationship to a party has never been recognized as an adverse factor in determining either the credibility of the witness orsubject only to well recognized exceptions none of which is here present the admissibility of the testimony. At most, closeness of relationship to a party, or bias, may indicate the need for a little more caution in the assessment of a witness testimony but is not necessarily a negative element which should be taken as diminishing the credit otherwise accorded to it. [25] Jades testimony on the genuineness of the deceaseds signature on the checks-exhibits of the Montinolas is clear: xxx Q: Showing to you this check dated July 16, 1989, Far East Bank and Trust Company Check No. 84262, in the amount of P100,000.00, is this the check you are referring to? A: Yes, sir. Q: There appears a signature in the face of the check. Whose signature is this? A: That is the signature of Mr. Sy. Q: Why do you know that this is the signature of Mr. Sy? A: Because he signed this check I was . . . I was present when he signed this check. xxx Q: Showing to you this check dated September 8, 1989, is this the check you are referring to? A: Yes, sir. Q: Why do you know that this is his signature?

A: I was there when he signed the same. xxx Q: Showing to you this Far East Bank and Trust Company Check No. 84262 dated July 6, 1989, in the amount of P50,000.00, in the name of Eduardo Montinola, are you referring to this check? A: Yes, sir. Q: Whose signature is this appearing on the face of this check? A: Mr. Sys signature. Q: Why do you know that it is his signature? A: I was there when he signed the same. x x x[26] (Emphasis supplied) The genuineness of the deceaseds signature hav ing been shown, he is prima facie presumed to have become a party to the check for value, following Section 24 of the Negotiable Instruments Law which reads: Section 24. Presumption of Consideration. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. (Underscoring and italics in the original; emphasis supplied), Since, with respect to the checks issued to the Montinolas, the prima facie presumption was not rebutted or contradicted by the administratrix who expressly manifested that she was dispensing with the presentation of evidence against their claims, it has become conclusive. As for the administratrixs invocation of the Dead Mans Statute, the same does not likewise lie. The rule renders incompetent: 1) parties to a case; 2) their assignors; or 3) persons in whose behalf a case is prosecuted. xxx The rule is exclusive and cannot be construed to extend its scope by implication so as to disqualify persons not mentioned therein. Mere witnesses who are not included in the above enumeration are not prohibited from testifying as to a conversation or transaction between the deceased and a third person, if he took no active part therein. x x x[27] (Underscoring supplied) Jade is not a party to the case. Neither is she an assignor nor a person in whose behalf the case is being prosecuted. She testified as a witness to the transaction. In transactions similar to those involved in the case at bar, the witnesses are commonly family members or relatives of

the parties. Should their testimonies be excluded due to their apparent interest as a result of their relationship to the parties, there would be a dearth of evidence to prove the transactions. In any event, as will be discussed later, independently of the testimony of Jade, the claims of the Montinolas would still prosper on the basis of their documentary evidence the checks. As to the second assigned error, petitioners argue that the testimonies of Sanson and Celedonia as witnesses to each others claim against the deceased are not covered by the Dead Mans Statute;[28] besides, the administratrix waived the application of the law when she crossexamined them. The administratrix, on the other hand, cites the ruling of the Court of Appeals in its decision on review, the pertinent portion of which reads: The more logical interpretation is to prohibit parties to a case, with like interest, from testifying in each others favor as to acts occurring prior to the death of the decease d. Since the law disqualifies parties to a case or assignors to a case without distinguishing between testimony in his own behalf and that in behalf of others, he should be disqualified from testifying for his co-parties. The law speaks of parties or assignors of parties to a case. Apparently, the testimonies of Sanson and Saquin on each others behalf, as co -parties to the same case, falls under the prohibition. (Citation omitted; underscoring in the original and emphasis supplied) But Sansons and Celedonias claims against the same estate arose from separate transactions. Sanson is a third party with respect to Celedonias claim. And Celedonia is a third party with respect to Sansons claim. One is not thus disqualified to testify on the others transaction. In any event, what the Dead Mans Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony.[29] Since the separate claims of Sanson and Celedonia are supported by checks-documentary evidence, their claims can be prosecuted on the bases of said checks. This brings this Court to the matter of the authenticity of the signature of the deceased appearing on the checks issued to Sanson and Celedonia. By Celedonias account, she knows the signature of the deceased. xxx Q: Showing to you these checks already marked as Exhibit A to E, ple ase go over these checks if you know the signatures of the late Juan Bon Fing Sy? on these checks? A: Yes, sir. Q: Insofar as the amount that he borrowed from you, he also issued checks?

A: Yes, sir. Q: And therefore, you know his signature? A: Yes, sir. x x x[30] Sanson testified too that he knows the signature of the deceased: xxx Q: I show you now checks which were already marked as Exhibit A to G -1 Saquin, please go over this if these are the checks that you said was issued by the late Juan Bon Fing Sy in favor of your sister? A: Yes, these are the same che[c]ks. Q: Do you know the signature of the late Juan Bon Fing Sy? A: Yes, sir. Q: And these signatures are the same signatures that you know? A: Yes, sir. x x x[31] While the foregoing testimonies of the Sanson siblings have not faithfully discharged the quantum of proof under Section 22, Rule 132 of the Revised Rules on Evidence which reads: Section 22. How genuineness of handwriting proved. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of such person. x x x, not only did the administratrix fail to controvert the same; from a comparison[32] with the naked eye of the deceaseds signature appearing on each of the checks -exhibits of the Montinolas with that of the checks-exhibits of the Sanson siblings all of which checks were drawn from the same account, they appear to have been affixed by one and the same hand. In fine, as the claimants-herein petitioners have, by their evidence, substantiated their claims against the estate of the deceased, the burden of evidence had shifted to the administratrix who, however, expressly opted not to discharge the same when she manifested that she was dispensing with the presentation of evidence against the claims. WHEREFORE, the impugned May 31, 1996 Decision of the Court of Appeals is hereby SET ASIDE and another rendered ordering the intestate estate of the late Juan Bon Fing Sy, through Administratrix Melecia T. Sy, to pay:

1) Felicito G. Sanson, the amount of P603,500.00; 2) Celedonia S. Saquin, the amount of P315.000.00;[33] 3) Angeles Montinola, the amount of P150,000.00; and 4) Eduardo Montinola, Jr., the amount of P50,000.00.