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G.R. No. L-1709 June 8, 1948 ASCENCION ICUTANIM, petitioner, vs. FERNANDO HERNANDE , Ju!"e o# F$%&' In&'(n)e o# C(*$+, (n! DEMETRIO ,INSON, -%o.$n)$(/ F$&)(/,respondents. Getulio Z. Guevara for petitioner. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Augusto M. Luciano for respondents. -ADILLA, J.0 Petitioner is charged with parricide for having killed his child of tender age. At the trial, the prosecution called to the witness stand his wife who is the mother of the deceased child. Petitioner objected to his wife testifying against him. The trial court overruled the objection, on the ground that the crime committed is against her; and for that reason the rule invoked does not apply (section ! "d#, $ule % &'. (omplaining that the overruling of the objection is not only against the law but also constitutes e)cess of jurisdiction and a grave abuse of discretion, petitioner seeks in this (ourt the annulment of said order and a writ directing the respondent court to refrain from giving it effect until it hear from this (ourt as to what it should do in the premises. *ithout going into the merits of the +uestion raised by the petitioner, suffice it to say that a writ of certiorari lies only when an inferior tribunal e)ercising judicial functions has acted without or in e)cess of its jurisdiction or with grave abuse of discretion and there is no appeal or other ade+uate, plain and speedy remedy in the ordinary course of law. ,ranting, arguendo, that the ruling of the respondent court is erroneous, the remedy to correct the mistake is by appeal. To allow parties litigant to come to this (ourt for the correction of errors committed in the course of the trial, which may be done on appeal, would unduly burden this (ourt with cases to be brought to it on appeal. Petition denied, with costs against the petitioner. Paras, Feria, Pablo, Perfecto, Hilado, engzon, riones and !uason, ""., concur. G.R. No. L-12384 O)'o4e% 15, 1973 JOSE CARANDANG, petitioner, vs. HON. JOSE R. CA6ATUANDO, Ju!"e o# '7e Cou%' o# A"%(%$(n Re/('$on&, Se.en'7 Re"$on(/ D$&'%$)', 6%(n)7 II, '7e -RO,INCIAL SHERIFF OF 6ATANGAS, (n! CONSUELO D. -AND8, respondents. !eofilo #. $gsi%er for petitioner. "ose &. 'ontreras for private respondent. ALDI,AR, J.: Petitioner -ose (arandang was the caretaker of private respondent (onsuelo .. Pandy/s %.0 hectare of coconut land situated at Puting12uhangin, 3an -uan, 2atangas. 4e had a house inside the landholding. 4e also owned a parcel of land adjoining it. 5n 6ebruary %, %7!& respondent Pandy filed a verified petition ((A$ (ase 8o. 9!!' for ejectment and damages in the (ourt of Agrarian $elations of 3an Pablo alleging that petitioner, in gross violation of the terms and conditions agreed upon between him and the landowner, had stubbornly refused and failed to clear the land of bushes and grasses, to take proper care of the coconut land and improvements thereon, and to perform the necessary work in accordance with the customs and proven practices in the locality; that petitioner had been feeding his hogs and chickens with coconuts from the landholding; that he gathered nuts and sold copra without notifying the respondent; and praying that petitioner be dismissed as caretaker of the landholding and be ordered to pay as damages the sum of P&:;.;;, plus attorney/s fees. Petitioner, having been served, on <arch 9, %7!&, with the summons and a copy of the complaint, and having failed to file his answer, the agrarian court, acting on the motion filed by respondent, declared petitioner in default and set the reception of respondent/s evidence on -uly , %7!& before the commissioner of the court. 5n <arch %&, %7!=, petitioner filed, through the 5ffice of the Agrarian (ounsel, a verified motion to set aside the order of default, alleging that the failure of petitioner to file an answer was due to mistake or e)cusable neglect, and that petitioner had a valid and meritorious defense, and praying that petitioner be allowed to file his answer. The court, on April %:, %7!=, denied the motion for failure of movant >to allege either in his motion to set aside order of default or in his supporting affidavit the facts constituting his alleged valid and meritorious defense.> After respondent had presented e( parte her evidence, the court rendered its decision dated 5ctober 9, %7!=, the dispositive portion of which reads as follows? @n view of all the foregoing, judgment is hereby rendered? %. 5rdering defendant -ose (arandang to vacate forthwith the landholding of %.0 hectares owned by plaintiff herein before described subject to the provisions of 3ection of $epublic Act %%77, as amended; . 5rdering the defendant to pay plaintiff the sum of P%=9.;; as damages, with interest at !A per annum from the filing of the complaint on 6ebruary %, %7!&, until fully paid; and &. 5rdering defendant to pay plaintiff the sum of P 0;.;; as attorney/s fees, plus the costs of this action. Petitioner filed on .ecember =, %7!= a motion for reconsideration of the decision upon the grounds that the court erred in not lifting the order of default, and in not determining the value of the labor and e)penses in the cultivation in accordance with the provisions of 3ection of $epublic Act %%77, as amended. The agrarian court issued, upon motion, an order of e)ecution dated 6ebruary !, %7!0, but the court later set it aside for the reason that it was first necessary to determine the indemnification that the defendant was entitled to pursuant to 3ection of $epublic Act 8o. %%77, and the court set for hearing the motion for e)ecution for <arch 0, %7!0. Petitioner submitted to the court a >bill of accounting>, dated <arch 0, %7!0, for the value of his labor and plantings such as coconut, banana, black pepper, jackfruit, mango, santol and star apple trees, in the total amount of P7,;;;.;;. 3ubse+uently, the court ordered an ocular inspection of the landholding involved to determine the number of coconut trees that were one year, two years, and five years old. The report of said inspection, dated April 0, %7!0, was submitted to the court. The court, in its order dated August =, %7!0, acting on the report of the ocular inspection, written and oral manifestations of respondent, and petitioner/s affidavit regarding the compensation claimed by him for the planting of the coconuts, considered paragraphs

and & of the decision satisfied, and directed the (lerk of (ourt to issue a writ of e)ecution ordering petitioner to vacate the landholding. The writ of e)ecution was served on 3eptember =, %7!0 upon herein petitioner by the Provincial 3heriff. Bpon motion of respondent, dated 5ctober 0, %7!0, the court, on 5ctober 9, %7!0, issued an order of demolition, ordering petitioner to remove at his own e)pense his house from the landholding in +uestion not later than 8ovember %0, %7!0, and that should he fail to do so, the Provincial 3heriff of 2atangas was authoriCed to demolish said house. This order was received by petitioner on 8ovember =, %7!0. Alleging that the e)ecution of the order of demolition >would work unwarranted hardship and irreparable damage and injustice upon petitioner who have not been accorded his day in court and has not been paid the indemnification due him, and not having any ade+uate, plain and speedy remedy,> the instant petition was filed on .ecember , %7!0 praying that a writ of certiorari, prohibition and injunction be issued, ordering respondent court to desist from further proceedings in the e)ecution of the decision in (A$ case 8o. 9!!, enjoining the Provincial 3heriff from enforcing the writ of e)ecution and order of demolition, and, after hearing the petition, to declare null and void the proceedings in said case. @n its resolution dated 3eptember !, %7!0, this (ourt ordered respondent to file their answer to the petition, and upon the posting of a bond, this (ourt, on .ecember %!, %7!0, restrained the 3heriff from enforcing the writ of e)ecution and order demolition. $espondent (onsuelo .. Pandy, in her answer, alleged that the order of default was regularly issued on -une %;, %7!& by the trial court; that it was only on <arch %&, %7!= that petitioner filed a motion to have it set aside; that said motion to set aside was denied on April %:, %7!=, and the motion for reconsideration dated <ay =, %7!= was also denied; that the decision dated 5ctober 9, %7!= was rendered in the valid e)ercise of the court/s jurisdiction; that the motion to reconsider the same, after having been heard, was denied on 6ebruary %, %7!0; that after the denial no action or step was taken by petitioner despite the availability of remedies provided by law; that the filing by petitioner of the >2ill of Accounting> indicated unerringly his conformity to the decision insofar as the same ordered him to vacate the landholding, for in said 2ill, he only claimed indemnification under 3ection of $epublic Act 8o. %%77; that an ocular inspection of the landholding was ordered to determine the indemnification due to petitioner; that petitioner presented no opposition to the report dated April 0, %7!0; that petitioner, having been served with the writ of e)ecution on 3eptember =, %7!0, made no step to +uestion it; that the court set for hearing the motion for the order of demolition but petitioner did not appear in said hearing in spite of having received notice thereof; that the writ of e)ecution had been served on petitioner and complied with on .ecember &, %7!0, i.e., ten days before respondent received copy of the petition in the instant case; and that petitioner has not been deprived of his day in court or of the indemnification due him. As affirmative defense, respondent alleged that petitioner had no cause of action, for there was no averment of any irregularity in the proceedings or that the respondent judge had acted without jurisdiction. The Provincial 3heriff of 2atangas, in his answer, alleged that petitioner/s house had already been demolished on .ecember =, %7!0 by virtue of the trial court/s order dated 5ctober 9, %7!0. @n his memorandum, counsel for petitioner argued that this is a special civil action under $ule !0 of the $ules of (ourt for the purpose of annulling the proceeding in (A$ (ase 8o. 9!!; that there is a cause of action, as is evident from this (ourt/s resolution re+uiring respondents to answer; that petitioner was denied his day in court when the proper motion to lift the order of default was denied by the trial court; that the decision was based on incompetent self1serving testimony of respondent (onsuelo .. Pandy, so that the decision of ejectment was a grave abuse of discretion; that the e)ecution of the decision and the demolition of petitioner/s house on .ecember =, %7!0, even after the instant petition had been filed and shown to the 3heriff and respondent Pandy, was a violation of the restraining order issued by this (ourt; that the trial court abused its discretion when it refused to adjudicate in whole the indemnification petitioner was entitled to; that there being palpable e)cess of authority in depriving petitioner of his rights and property without due process of law, and the decision dated 5ctober %9, %7!= and the order of 5ctober 9, %7!0, being in their nature interlocutory, certiorari is the proper remedy. Petitioner claims that the instant action is a special civil action under $ule !0 of the $ules of (ourt. @n a certiorariproceeding under section %, $ule !0, of the $ules of (ourt, the court is confined to +uestions of jurisdiction. The reason is that the function of the writ of certiorari is to keep an inferior court within its jurisdiction, to relieve persons from arbitrary acts D that is, of acts which they have no authority or power in law to perform D of courts and judges, and not to correct errors of procedure or mistakes in the judge/s findings or conclusion (2ustos vs. <oir and 6ajardo, &0 Phil. =%0, =%:1=%9; Pacis vs. Averia, E1 0 !, 8ovember 7, %7!!, %9 3($A 7;:, 7%=17%0; Albert vs. (ourt of 6irst @nstance of <anila (2r. F@', E1 !&!=, <ay 7, %7!9, & 3($A 7=9, 7!0; Gstrada vs. 3to. .omingo, E1&;0:;, -uly 7, %7!7, 9 3($A 97;, 7%0'. 6or a writ of certiorari to issue, it must not only be shown that the board, tribunal or officer acted without or in e)cess of jurisdiction, or in grave abuse of jurisdiction, but also that there is no appeal or other plain, speedy, and ade+uate remedy in the course of law (-ose vs. Hulueta, E1%!079, <ay &%, %7!%, 3($A 0:=, 0:9; Atlas .evelopment and Acceptance (orporation vs. ,oCon, E1 %099, -uly &%, %7!:, ; 3($A 99!, 97%'. .o the above1mentioned re+uisites for certiorari obtain in the instant caseI @t cannot be seriously contended that the trial court had no jurisdiction over the subject1 matter and the parties in (A$ (ase 8o. 9!!. Petitioner never claimed such want of jurisdiction either in the court below or in the instant petition. @t cannot be gainsaid that the (ourt of Agrarian $elations had authority to try and hear, decide and determine, the aforesaid case and to issue and enforce all its lawful orders relative to the case. The +uestion, therefore, to be determined is whether the respondent (ourt of Agrarian $elations e)ceeded its jurisdiction or gravely abused its discretion, and whether there was no appeal or any plain, speedy and ade+uate remedy in the ordinary course of law. *as there an abuse of discretion on the part of the court when it declared petitioner in default, and did not lift, upon proper motion, said orderI Petitioner claims there was, when he alleged that he >was not heard, even upon proper motion to lift the order of default, all had been denied by the respondent judge, in short he (petitioner' had not been afforded his right to due process of law.> The record belies said claim. The record shows that petitioner had not been deprived of his right to be heard. The summons and copy of the complaint in (A$ (ase 8o. 9!! were served upon petitioner on <arch 9, %7!&. 8o answer or responsive pleading had been filed within the reglementary period. The answer should have been filed within 0 days after service of summons, pursuant to $ule : of the $ules of

(ourt of Agrarian $elations promulgated under the provisions of 3ection %; of $epublic Act 8o. % !:, as amended by 3ection ! of $epublic Act 8o. %=;7. 4aving failed to answer, the trial judge, upon motion filed by respondent Pandy, declared, on -une %;, %7!&, petitioner in default. The action of the (A$ judge was perfectly legal. Bnder $ule ; of the rules of the (ourt of Agrarian $elations, the provisions of the rules of court relating to courts of first instance which are not inconsistent with the rules of the (ourt of Agrarian $elations are applicable to cases pending before the agrarian court. Gven section %00 of the Agricultural Eand $eform (ode ($epublic Act 8o. &9==' provides that the (ourt of Agrarian $elations shall have all the powers and prerogatives inherent in, or belonging to, the (ourt of 6irst @nstance, and it shall be governed by the $ules of (ourt, provided that in the hearing, investigation, and determination of any +uestion or controversy pending before them, the courts, without impairing substantial rights, shall not be bound strictly by the technical rules of evidence and procedure, e)cept in e)propriation cases. @t cannot be seriously urged that the trial court abused its discretion when after having declared petitioner in default, it proceeded to receive respondent/s evidence and render judgment granting him such relief as the complaint and the facts proven warranted. The trial court simply acted in accordance with the provisions of the rules of court. The trial court cannot be said to have abused its discretion when it denied on April %:, %7!=, the motion dated <arch %&, %7!= to lift the order of default, for neither said motion nor the affidavit supporting it stated facts constituting a valid and meritorious defense. 3ection &, $ule %9, of the new $ules of (ourt, already in force as of that date, provided that the motion to set aside the order of default must show that the failure to answer was due to fraud, accident, mistake, or e)cusable neglect and that the movant has a meritorious defense. Anent this matter it has been held that when a motion to lift the order of default does not show that the defendant has a meritorious defense and that his failure to answer the complaint on time is legally e)cusable, or that anything would be gained by having the order of default set aside, the denial by the court of the motion to lift the order of default does not constitute abuse of discretion (<anCanillo vs. -aramilla, 9= Phil. 9;7, 9%%'. The trial judge likewise legitimately e)ercised his jurisdiction, when he rendered the decision dated 5ctober 9, %7!=, based on respondent/s evidence, and when on 6ebruary %, %7!0 he denied the motion for reconsideration in open court. 6rom all the foregoing, it is apparent that herein petition was given notice and opportunity to be heard before judgment was rendered. 4e was not denied of his right to due process of law. .ue process contemplates notice and opportunity to be heard before judgment is rendered affecting one/s person or property. (<acabingkil v. Jatco, E1 &%:=, 3eptember 9, %7!:, % 3($A %0;, %0:; 2atangas Eaguna Tayabas 2us (o. v. (adiao, E1 9: 0, <arch % , %7!9, 3($A 79:, 77=; 2ermejo vs. 2arrios, &% 3($A :!=, ::0'. .id the trial court commit a grave abuse of discretion when it rendered its decision based on respondent/s evidence on the ground that said evidence was self1servingI The law itself provides that a party or any other person interested in the outcome of a case may testify (3ection %9, $ule %&;, $ules of (ourt'. The testimony of an interested witness, this (ourt has said, should not be rejected on the ground of bias alone, and must be judged on its own merits, and if such testimony is clear and convincing and not destroyed by other evidence on record, it may be believed (B.3. vs. <ante, : Phil. %&=, %&9'. 8either can said testimony be said to be self1serving. This (ourt has said that self1serving evidence is an evidence made by a party out of court at one time; it does not include a party/s testimony as a witness in court (8ational .evelopment (o. vs. *orkmen/s (ompensation (ommission, E1 %: =, April :, %7!:, %7 3($A 9!%, 9!019!!'. Gven assuming, arguendo, that the trial judge committed an error in basing his decision on the testimony of herein respondent, the petitioner had a remedy by appeal and not by a petition for certiorari. Appeal from the decision of the (ourt of Agrarian $elations is provided in 3ection %0! of the Agricultural Eand $eform (ode ($epublic Act 8o. &9==' and $ule =& of the $ules of (ourt. Petitioner did not avail of this remedy. @nstead, on .ecember , %7!0, after the period for appeal had lapsed, he filed the instant special civil action for certiorari. 4e cannot now avail ofcertiorari. *here petitioner had failed to file a timely appeal from the trial court/s order, he can no longer avail of the remedy of the special civil action for certiorari in lieu of his lost right of appeal, if there is no error of jurisdiction committed by the trial court (<abuhay @nsurance K ,uaranty, @nc. vs. (ourt of Appeals, E1 9:;;, <arch &;, %7:;, & 3($A, =0, 0 '. Petitioner claims that the trial court abused its discretion by refusing to adjudicate in whole the indemnification petitioner was entitled to as provided in section of $epublic Act 8o. %%77. @t is to be recalled that petitioner, having been declared in default, did not testify. @t was to be e)pected that there was no evidence to show that petitioner was entitled to indemnification. Gven then the trial judge, in the interest of justice, set aside the order of e)ecution dated 6ebruary !, %7!0, and granted to petitioner herein the benefits of section of $epublic Act 8o. %%77 providing for the payment of indemnification, as is shown by the order dated <arch , %7!0, which recited? *herefore, plaintiff/s motion for e)ecution is hereby set for hearing on <arch 0, %7!0 at 7?;; o/clock in the morning ... to determine the said indemnification. .ue hearing on the amount of indemnification was held and the court issued an order, dated April , %7!0, directing the ocular inspection of the subject landholding. Petitioner was present at the ocular inspection. The $eport, dated April 0, %7!0, on the ocular inspection, determining the number of coconut trees and their ages, was submitted to the court. Petitioner did not file any objection to said report. The matter was set for hearing on -uly % , %7!0, as per notice of hearing dated -une 9, %7!0. Petitioner did not appear at the hearing. Another hearing on the report was set for August =, %7!0, but petitioner again did not appear. The respondent judge therefore, issued the order of August =, %7!0 awarding petitioner the amount of P%:& as the >indemnification he is entitled to under section of $epublic Act 8o. %%77,> and the same time directed the (lerk of (ourt to issue a writ of e)ecution covering paragraph % of the dispositive portion of the decision dated 5ctober 9, %7!= in the sense that petition herein was ordered to vacate the subject landholding. The order of the court further states that the plaintiff (respondent herein' waived her right to the damages awarded to her in the decision of 5ctober 9, %7!= in e)cess of P%:&.;;. (opy of this order was received by petitioner/s counsel on August =, %7!0. 8o step was taken to attack or assail this order of e)ecution, or the sufficiency of the indemnification. 8o motion for reconsideration or for new trial to call the attention of the court to the insufficiency of the indemnification or to the illegality of the order was ever filed, until & months later when the instant petition for certiorari was filed on .ecember , %7!0. 3uch inaction could mean only that petitioner was completely satisfied with the order of August =, %7!0, otherwise he could have filed within the reglementary period the necessary motion for reconsideration or motion for new trial. The decision had become final;

e)ecution followed as a matter of course, and the court cannot be accused of having e)ceeded its jurisdiction or gravely abused its discretion in ordering the e)ecution. (an the trial court be accused of not having granted the whole indemnity to which petitioner was entitledI The indemnity to the tenant was governed by 3ection of $epublic Act 8o. %%77, as amended, which provides as follows? (=' The tenant shall have the right to be indemnified for his labor and e)penses in the cultivation, planting, or harvesting and other incidental e)penses for the improvement of the crop raised in case he is dispossessed of his holdings, whether such dismissal is for a just cause or not, provided the crop still e)ists at the time of the disposition. 5n the basis of said statutory provision, petitioner, in his >2ill of Accounting>, dated <arch 0, %7!0, which he submitted to the trial court, claimed a total indemnity of P=,;;; for various trees, besides coconut trees, namely? coffee, banana, native atis, star apple, Persian atis, black pepper tree, jackfruit, mango and santol, and P0,;;; for his labor for %! years, making a total of P7,;;;.;;. @t is noteworthy that the afore+uoted 3ection enumerated the indemnity to which the tenant is entitled D >for his labor and e)penses in the cultivation, planting or harvesting and other incidental e)penses for t)e i%prove%ent of t)e crop raised.> ... The landholding under consideration is a coconut land. The crop raised is coconut. The tenant is entitled to indemnity for the labor and e)penses in the cultivation, planting or harvesting of the crop raised on the land at the time of dispossession. The diverse fruit trees other than coconut which petitioner claimed to have planted were not for the improvement of the crop raised. The law does not provide indemnity therefor. Thus in Paz vs. 'ourt of Agrarian Relations , E1% 0:;, April 9, %7! , = 3($A %%!;, %%! , this (ourt held that it was an error for the (ourt of Agrarian $elations to order a tenant to be indemnified for the value of fruit trees on the land, this (ourt saying that 3ection >does not provide for indemnity for the value of permanent improvements e)isting on the land, ... nor for the e)penses in clearing the same upon taking possession thereof originally by the tenant. ... 3uch being the case, any award that may be made with regard to the value of said permanent improvements, or the e)penses of clearing the land, whether fruit land or tala)ib land, is improper and unauthoriCed, and so the court a *uo erred in including in the award an indemnity for the items abovementioned.> 6rom the above discussions it is evident that the trial court committed no abuse of discretion and it did not e)ceed its jurisdiction. The remedy of petitioner, if he was not satisfied with the trial court/s decision, was appeal. This petition for certiorari must necessarily be denied. @n his prayer, petitioner prayed that pending the determination of the merits, the sheriff be enjoined from enforcing the writ of e)ecution and order of demolition issued by the respondent judge. The record shows that the house of herein petitioner on the subject landholding was demolished on .ecember =, %7!0, as per 3heriff/s $eturn dated .ecember :, %7!0. The order of this (ourt restraining the enforcement of the writ of e)ecution and order of demolition was issued only on .ecember %!, %7!0. The demolition, therefore, could not have been made, as claimed by petitioner, in violation of the restraining order. The established principle is that when the event sought to be prevented by injunction or prohibition has already happened, nothing more could be enjoined or prohibited because nothing more could be done in reference thereto. (Aragones vs. 3ubido, E1 =&;&, 3eptember &, %7!9, 0 3($A 70, %;%.' P$G<@3G3 (583@.G$G., this action for certiorari with prohibition and injunction must be dismissed, and the restraining order issued by this (ourt on .ecember %!, %7!0 is ordered lifted. 8o pronouncement as to costs. @t is so ordered. G.R. No. L-11992 June 19, 1957 9ILLIAM ADDEN6ROO: 8 6AR:ER, petitioner, vs. -EO-LE OF THE -HILI--INES, respondent. Ross, Selp) and 'arrascoso for petitioner. $ffice of t)e Solicitor General Arturo A. Alafriz, Assistant Solicitor General A. A. !orres and Solicitor ". M. Lantin for respondent. RE8ES, J.6.L., J.: Petition for certiorari to review the decision of the (ourt of Appeals affirming a conviction by the (ourt of 6irst @nstance of <anila for homicide through reckless imprudence upon the petitioner *illiam Addenbrook J 2arker. The appellate court/s decision depicts the facts as follows? . . . about &?%0 in the afternoon of 7 -anuary %7!;, the front bumper of the 3tanvac 3ervice Truck with Plate 8o. :=;, <anila, 7!;, while travelling southward along <ar+ueC de (omillas being driven then by accused *illiam Addenbrook, and in front of 4ouse 8o. %;%;, came into contact with the body of a pedestrian *enceslao $isaldo with the result that the latter fell and was taken to the Philippine ,eneral 4ospital by accused and his helper in the truck named Amando Faleriano, but was dead on arrival, it having been found that he had received abrasions on the left forehead, and contusions with lacerations on the face, left arm, right thigh, knee joints, and right buttocks and waist and fracture of the skull, G)h. 2, so that the 6iscal filed the present criminal case for homicide thru reckless imprudence against accused resulting in his conviction. . . . Bpon impact of the van against the victim, the latter fell and rolled to a distance of fifteen (%0' paces, as shown by two ( ' sets of bloodstains observed by patrolman Gmilio ,uCman in his ocular investigation immediately after the occurrence of the incident. 6rom these facts, the appellate court found it difficult to believe that the van was travelling at a slow and reasonable speed. (onsidering further that as postulated by the accused himself, his view of the street was partly blocked by a parked car in front of house 8o. %;%;, <ar+ueC de (omillas, from behind which the deceased tried to cross the street; and with the added fact that the appellant did not blow his horn despite the visual obstruction by the parked car, the (ourt of Appeals concluded that he failed to observe that reasonable care re+uired of a driver of a motor vehicle. Appellant insists that such conclusion is error, and assails the credibility and competency of witness ,uCman. (redibility of witnesses is a +uestion of fact ($umbaoa vs. ArCaga, 9= Phil. 9% ; Eim vs. (alaguas, 9& Phil. :7!' and, therefore, not reviewable by the 3upreme (ourt. (Abeto vs. People, 7; Phil. 09%'. The objection to patrolman ,uCman/s competency because he was not presented as an e)pert witness, nor did he see the incident actually happen, is untenable. *hat ,uCman testified to are what he saw in his ocular investigation, such as

the two ( ' sets of bloodstains and the %0 paces distance between them, that were facts derived from his own perception.+,-p).+./0t The (ourt of Appeals gave no credence to the claim that the deceased suddenly darted from behind the parked car. 8either did the trial court do so, considering the lack of corroboration of petitioner/s version, and the circumstance that the victim, being a grown1 up man, and not a child, would not have ignored the noise of the oncoming vehicle, there being no reason shown for his disregarding the obvious danger. At any rate, that the accident could not be avoided because the victim was so close to the truck when he, as alleged by appellant, suddenly darted across the street, does not e)culpate the accused, since the latter was driving at e)cessive speed. The fact that a pedestrian came into the path of the car suddenly and so close that the driver could not stop and avoid striking him will not e)cuse the driver, where the car was being driven at an unreasonable rate of speed under the circumstances. (0 Am. -ur. p. !% , sec. %70'. *hile the general rule is that a driver is not held accountable just because he failed to take the wisest choice in a sudden emergency, the rule does not apply where the emergency is of the driver/s own creation or devising. The other assigned errors raise +uestions of fact and credibility which this (ourt is not at liberty to revise. *e, therefore, find no error in the appealed decision, and the same is hereby affirmed. (osts against appellant, *illiam Addenbrook y 2arker. 3o ordered. 'oncepcion, '."., 1izon, Ma2alintal, engzon, ".P., Zaldivar, Sanc)ez and 'astro, ""., concur. G.R. No. 119308 A*%$/ 18, 1997 -EO-LE OF THE -HILI--INES, plaintiff1appellee, vs. CHRISTO-HER ES-ANOLA ; -A<UINGAN alias =L(n""(= o% =Co)o;=, JIMM8 -A<UINGAN ; 6ATILO alias=J$>>;= (n! JEOFFRE8 A6ELLO ; SALADO (/$(& =6e%o;,= accused1appellants. -UNO, J.: This is an appeal from the decision 1 dated 8ovember %, %77=, of the $egional Trial (ourt of Eanao .el 8orte, % th -udicial $egion, 2ranch 0, (ity of @ligan, finding the accused1appellants (hristopher Gspanola y Pa+uingan, -immy Pa+uingan y 2atilo and -eoffrey Abello y 3alado guilty beyond reasonable doubt as principals for the murder of -essette TarroCa in (riminal (ase 8o. &::&. The three accused were meted a prison term of reclusion perpetua with the accessory penalties provided by law. They were ordered to indemnify jointly and severally the heirs of the victim -essette TarroCa the amount of P0;,;;;.;; as actual damages, P0;,;;;.;; as compensatory damages, P0;,;;;.;; as moral damages and P 0,;;;.;; as e)emplary damages. The Amended @nformation charging the accused1appellants with the crime of <urder and indicting another accused in the person of -oel ,onCales reads? AM3&131 4&F$RMA!4$& The undersigned 'it5 Prosecutor of 4ligan accuses (4$@3T5P4G$ G3PA85EA y Pa+uingan alias>Langga> -@<<J PALB@8,A8 y 2atilo, -G566$GJ A2GEE5 y 3alado alias > ero5> and "$3L G$&ZAL3S alias >A-ing> alias >6ing-ing> of the crime of M7R13R, committed as follows? That on or about 8ovember %!, %77%, in the (ity of @ligan, Philippines, and within the jurisdiction of this 4onorable (ourt, the said accused, who were all under the influence of drugs (<arijuana', conspiring and confederating together and mutually helping each other with intent to kill and by means of treachery and with abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, stab and hit one -essette TarroCa, thereby inflicting upon the said -essette TarroCa the following physical injuries, to wit? D @ncised wound .0 cms in length, lateral border of ($' ala nasi D Triangular stab wound, neck ($' side, = cms ) & cms ) 0.0 cms D @ncised wound, anterior neck, ! cms ) = cms ) &.0 cms which traversed thru the trachea, e)ternal jugular vein and &M= of the esophagus D 3tab wound, anterior neck, ($' supraclavicular area, .0 cms ) % cm ) = cms D 3tab wound, (E' anterior chest, midclavicular line %.0 cms % cm ) .0 cms D 3tab wound, ($' anterior chest, = cms ) cms with fracture of the =th and 0th rib with lung tissue out D 3tab wound, ($' anterior chest, level of a)illa, cms ) % cm ) 0 cms D 3tab wound, ($' anterior chest, &rd @(3, midclavicular line .0 ) %.= cms D (1shaped stab wound, ($' anterior chest, midclavicular line, &.0 cms ) cms ) & cms, nd @(3 D 3tab wound, ($' anterior chest, nd @(3, ($' parasteal line, .0 cms ) %.0 cms ) = cms D (onfluent abrasion ($' elbow joint, anteromedial aspect & cms in diameter D <ultiple punctured wounds (0', back, ($' side D (onfluent abrasion %; cms by & cms, back, lumbar area and as a result thereof the said -essette TarroCa died; that immediately after inflicting fatal injuries on the said -essette TarroCa the, herein accused took turns in having se)ual intercourse with the victim. (ontrary to and in violation of Article =9 of the $evised Penal (ode with the aggravating circumstances of? (%' treachery and abuse of superior strength; ( ' cruelty in all ( sic' ignominy; (&' that the accused

were under the influence of drugs at the time of the commission of the offense and (=' outraging or scoffing of (sic' the corpse of the victim. (ity of @ligan, 8ovember 7, %77%. The facts of the case show that -essette TarroCa went to work at the <ercy (ommunity (linic, (amague, @ligan (ity, as a medical technologist at about & o/clock in the afternoon of 8ovember %!, %77%. 4er tour of duty was from & o/clock in the afternoon to eleven o/clock in the evening. 1 After working for eight hours, she left the clinic at about %%?%0 p.m., with (laro Ei+uigan, a co1employee. *hen they reached the junction road leading to her house at about %%?&; p.m., (laro offered to escort -essette to her house but she refused saying that she knew the people in the area. 3he then walked towards her house while (laro rode his bicycle and went home. *hen they parted ways, (laro noticed four (=' persons in the pathway leading to -essette/s house. They were about !; to :; meters away from him and he did not recogniCe whether they were male or female. 3 -essette TarroCa failed to come home that fateful evening. 3he was found dead. 4er father, $omeo TarroCa, rushed to the place where her body was discovered. 4 4e was shocked to see -essette lying in a grassy area more or less fifty (0;' meters from their home and only fifteen (%0' meters from the pathway. 4er body bore stab wounds. 4er red blouse was wide open and her pants removed. 4er panty was likewise removed while her bra 2 was cut. The red blouse 5was torn with three (&' holes at the back, ten (%;' holes on the front and si) (!' holes on the left sleeve. 4er blouse, bra and shoes were stained with blood. 4er panty, found about two ( ' feet away from her cadaver, had blood on the front portion. A light green T1shirt with the print ><idwifery> at the back and >@((> on the front 7 was also found near the shoes of the victim. The T1shirt was not hers. 8 The law enforcement officers of @ligan (ity immediately conducted an investigation. They found blood stains along the pathway which was appro)imately fifteen (%0' meters away from the place where the victim was found. There was a sign of struggle as the plants and bushes at the scene of the crime were destroyed and flattened. They e)tended their investigation to the neighboring sitios and purok of Nilumco but found no lead as to the perpetrators of the crime. 9 @n the morning of 8ovember %7, %77%, 3P5 = $uperto 8eri received an anonymous telephone call suggesting that a certain >*ing1wing> 10 be investigated as he has knowledge of the crime. Antonio Eubang, (hief of the 4omicide 3ection, @ntelligence and @nvestigation .ivision of the @ligan (ity Police 3tation, and his men looked for >*ing1 wing>. Eubang knew >*ing1wing> as the latter fre+uently roamed around the public plaCa. They learned that the real name of >*ing1wing> is -oel ,onCales. They then saw ,onCales at his house and invited him to the police station. At the police station, ,onCales confessed that he was present when the crime was committed and that he knew its perpetrators. 4e identified them as >2eroy>, >Eangga> and >-immy>. 4e informed that the three stabbed and raped -essette TarroCa. ,onCales, however, did not give the surnames of the three suspects. The policemen asked $omeo TarroCa whether he knew the suspects. $omeo TarroCa declared that they were his neighbors. 4e identified >-immy> as -immy Pa+uingan, >Eangga> as (hristopher Gspanola and >2eroy> as -eoffrey Abello. 11 5n the same day, ,onCales was detained at the police station. @n the early morning of 8ovember %, %77%, (hief Eubang invited -immy Pa+uingan, (hristopher Gspanola and -eoffrey Abello to the police station where they were investigated. All denied the story of ,onCales. A police line1up of twelve (% ' persons which included the three accused1appellants was then made in the police station. ,onCales was called and he pointed to Pa+uingan, Gspanola and Abello as his companions in the killing and rape of -essette TarroCa. After the line1up, the three suspects were brought to the (ity 4ealth 5ffice for check1up because the policemen saw that they had bruises and scratches on their faces, foreheads and breasts. 11 They were e)amined by .r. Eivey -. Fillarin. *ith respect to Pa+uingan, the medical certificate (G)hibit >@>' showed that he had scratch abrasions on the right mandibular area (jaw', on the left side of the neck and on the right mid1a)illary (chest'. .r. Fillarin testified that the abrasions could have been caused by any sharp object or possibly fingernails. The medical certificate issued to Gspanola (G)hibit >->' showed that he had contusions on the right shoulder and hematoma. .r. Fillarin testified that the injuries could have been effected by a jab or sharp blow. The medical certificate issued to Abello (G)hibit >N>' showed that he sustained abrasion and contusion at the right deltoid area which according to .r. Fillarin, could have been caused by a sharp or hard object or a fist blow that hit that particular area of the body. 13 5n the same day, an information for rape with homicide 14 was filed against Pa+uingan, Gspanola and Abello. They were committed to the city jail after their warrant of arrest was issued by G)ecutive -udge 6ederico F. 8oel. 12 @n the afternoon of 8ovember 0, %77%, (hief Eubang brought -immy Pa+uingan to the (ity Prosecutor/s 5ffice for the taking of his confession after he manifested to the jail warden his intention to confess. (ity Prosecutor Blysses F. Eagcao asked Pa+uingan if he would avail the services of counsel and he answered in the affirmative. *hen asked if he had a counsel of his own choice, he answered in the negative. 4e was provided with the services of Atty. Eeo (ahanap, the legal counsel of the (ity <ayor/s 5ffice, and Atty. 3usan GchaveC, a representative of the @2P Eegal Aid, @ligan (ity (hapter. They were given time to confer with him. 15 Pa+uingan then confessed. 4owever, when asked to sign the stenographic notes, Pa+uingan refused saying he would wait for his mother first. 17 The sworn statement of Pa+uingan (G)hibit >E>' was transcribed on 8ovember 7, %77%, but signed only by the two lawyers. According to the statement, Abello slashed the neck of -essette. -essette fell down and was brought to a bushy area where she was se)ually abused. The first to have se)ual intercourse with the victim was Abello. Pa+uingan then followed him. Gspanola had his turn ne)t; and ,onCales was the last. 18 Bpon review of the records of the case, 6iscal Eagcao discovered that the victim was se)ually abused after she was murdered. Thus, he filed an Amended @nformation on 8ovember 7, %77%, charging the three accused with the crime of murder and indicting -oel ,onCales as the fourth accused. 19 A warrant for the arrest of ,onCales was issued on the same date by G)ecutive -udge 6ederico F. 8oel. 10 All the accused pleaded >not guilty> when arraigned. After presenting several witnesses, the prosecution filed on -une %:, %77 , a motion to discharge accused -oel ,onCales as a state witness 11 in accordance with 3ection 7, $ule %%7 of the $ules of (ourt, alleging? %. That accused -oel ,onCales has intimated to the undersigned (ity Prosecutor that he is willing to testify for the prosecution as state witness; . That there is absolute necessity for the testimony of accused -oel ,onCales considering that the evidence for the prosecution in this case is mainly circumstantial; &. That the testimony of accused -oel ,onCales can be substantially corroborated in its material points;

=. That the said accused does not appear to be the most guilty; and 0. That he has not at any time been convicted of any offense involving moral turpitude. @n traversing the motion, the defense asserted? %. That there is no showing in the face of said motion that -oel ,onCales agrees to be utiliCed as state witness; . That -oel ,onCales appears to be the most guilty as he alone among the accused has e)ecuted a confession regarding the killing of -essette TarroCa. @n an 5rder 11 dated -une !, %77 , the trial court discharged ,onCales as a state witness. @n the course of the trial, .r. (hito $ey ,omeC, <edico1Eegal 5fficer of the @ligan (ity 4ealth 5ffice, testified that he conducted a post mortem e)amination on the cadaver of -essette TarroCa. 4e issued a .eath (ertificate (G)hibit >G>' which indicated that the cause of death was cardiorespiratory arrest due to pneumohemathora) of the right chest. 4e also prepared a 8ecropsy $eport (G)hibit >6>' after the e)amination. 4e found five (0' stab wounds at the back of the victim and ten (%;' stab wounds at the front, consisting of an incised wound at the lateral border of the ala nasi, right; triangular stab wounds on the right side of the neck and lower neck; an incised wound which traversed through the trachea e)ternal jugular vein and three1fourths (&M=' of the esophagus; a (1shaped stab wound that penetrated the thora) cavity and a stab wound above the breast near the a)illa. 4e testified further that the wounds inflicted must have reached some vital organs of the body, possibly the lungs and blood vessels, and that the wounds were probably caused by three (&' different instruments. 4e likewise conducted a vaginal e)amination on the victim and noted that there was a fresh complete hymenal laceration at & o/clock and fresh complete lacerations at : o/clock and 9 o/clock, which could have been caused by a finger or a se) organ inserted into the vagina. *hen asked if the victim was se)ually molested, he answered in the affirmative. 13 Another witness for the prosecution was .r. Tomas P. $efe, <edico1Eegal 5fficer @@@ of the 8ational 2ureau of @nvestigation, (entral Fisayas $egional 5ffice. 4e testified that he conducted an autopsy e)amination on the cadaver of -essette TarroCa and prepared Autopsy $eport 8o. 7%1 : (G)hibit >4>'. 4e found abrasions and thirteen (%&' stab wounds on the front part of the chest, right side, and at the back of the victim/s chest. 4e also found an incised wound at the region of the nose involving the upper portion of the right side of the mouth, an incised wound on the front part of the neck cutting the trachea and partially the esophagus and an incised wound at the anterior aspect right side of the neck. 14 4e declared that death was caused by the incised wounds and multiple stab wounds. The fatal wounds were wound nos. , &, =, 0, :, 7 and %; (G)hibits >4>, >41%>'. 4e likewise e)amined the vagina of the victim and found the hymen moderately thick and narrow with lacerations complete at & o/clock and ! o/clock, deep at : o/clock, 7 o/clock, %; o/clock and %% o/clock, and the edges of the lacerations were sharp and coaptable. 4e opined that there could have been a se)ual intercourse committed after the death of the victim considering that the lacerations did not show any evidence of vital reaction which is commonly found in lacerations during lifetime. 12 The prosecution also presented -oel ,onCales who turned state witness. 5n the basis of the demeanor of ,onCales and the manner he answered the +uestions, the trial court gathered the impression that he was mentally retarded. 15 ,onCales did not know how to read and write. 17 @n any event, he was able to testify that on the night of 8ovember %!, %77%, he went to 2aybay, (amague, @ligan (ity, to witness a dance. 4is companions were >2eroy>, >-immy> and >(ocoy>. 4e identified -eoffrey Abello as >2eroy>, (hristopher Gspanola as >(ocoy> or >Eangga> and -immy Pa+uingan as >-immy>. At the dance, they drank one (%' bottle of Tanduay and smoked one (%' stick of marijuana each. After the dance, he and his three (&' companions proceeded to 2acayo. *hile on their way, they met a woman whom 2eroy, (ocoy and -immy followed. They brought the woman to a nipa hut and slept (>gidulgan>' right beside the woman. *hen asked who killed the victim on the night of 8ovember %!, %77%, at Nilumco, (amague, @ligan (ity, he answered >sila>, referring to herein appellants. 4e further testified that 2eroy slashed the neck of -essette TarroCa, Eangga slashed her breast, and Pa+uingan stabbed her at the back. The victim resisted by scratching her attackers. 18 After she died, they carried her to a bushy area and all of them se)ually molested her. 2eroy was first; ,onCales was second; (ocoy was third and -eoffrey was the last. ,onCales likewise identified the T1shirt worn by -eoffrey Abello that night as >That one <ercy.> 4e declared that the brownish discoloration on the T1shirt was caused by the blood of -essette TarroCa. 19 5n cross1e)amination, ,onCales said that -essette TarroCa was not the one brought to the nipa hut, but a woman from Tambacan who went home later on. 4e then reiterated that after their encounter with the unnamed woman, they went to the school, met and followed -essette TarroCa to a dark place. They encountered her on the road. 4e affirmed that it was 2eroy who slashed the neck of the victim while (ocoy, also known as Eangga, was the one who slashed her breasts. 30 6or their defense, all the appellants took the witness stand. -immy Pa+uingan narrated that at about ! o/clock to 7 o/clock in the evening of 8ovember %!, %77%, he watched >beta> (movie' in the house of 3ima JbaneC at Nilumco, (amague. Thereafter, he went to the house of his grandmother located at the same barangay and slept there. 4e did not go out again and woke up at ! o/clock in the morning of 8ovember %:, %77%. 4is testimony was corroborated by Gmma <ingo who testified that at about ! o/clock in the evening of 8ovember %!, %77%, she viewed >beta> in her residence at Nilumco, (amague, with her daughter and accused (hristopher Gspanola. At about 7?&; in the evening, the film ended and (hristopher left. At about the same time, -immy Pa+uingan, her nephew, came and proceeded to his room downstairs. As she waited for her husband to come home, she continuously stayed at the porch until %?&; in the early morning of 8ovember %:, %77%. @n her long wait, she did not see -immy leave his room. 31 (hristopher Gspanola alleged that he was at home in the evening of 8ovember %!, %77%. 4e went out to view a >beta> in the house of 3ima JbaneC. 6rom there, he proceeded to a disco. 5n his way, he passed by the house of (armencita ,atase who was then with -eoffrey Abello. They went to the disco together. At the disco, he joined the group of Eito <oraira and Titing <ingo and drank with them. There was no occasion that he left the disco place until after % o/clock in the early morning of 8ovember %:, %77%, when they went home. 4e woke up at : o/clock the following morning and proceeded to the house of his grandmother to fetch water. 31 -eoffrey Abello narrated that in the early evening of 8ovember %!, %77%, he was at their house in Nilumco, (amague. 4e left their house to watch a >beta> in the house of 3ima JbaneC. 4owever, he was invited by (armencita ,atase to go to a disco in 2aybay, (amague. 4e acceded and went to ,atase/s house. (hristopher Gspanola joined them on

their way to the disco. They arrived at the disco at about %; o/clock in the evening. 4e saw there a group of persons including -oel ,onCales and Titing <ingo. *hile he saw (hristopher at about %% o/clock that evening, he did not see -immy Pa+uingan. At about % o/clock in the early morning of 8ovember %:, %77%, he and (armencita left ahead of (hristopher. They then proceeded to the house of (armencita where they slept. 33 @n her testimony, (armencita ,atase identified the three (&' accused as her neighbors and long1time ac+uaintances. At about 9 o/clock in the evening of 8ovember %!, %77%, -eoffrey Abello went to her house. At 7?&; in the evening, she asked -eoffrey and (hristopher Gspanola, who was then downstairs, to go with her to the disco. They reached the place at about %; o/clock. (hristopher then asked permission to join the group of his Bncle <ingo. 3he and -eoffrey remained conversing and standing at the side of the disco. They left the dancing area at %?&; in the early morning of 8ovember %:, %77%, not noticing the whereabouts of (hristopher. 5n their way home, the two of them passed by the basketball court which was only eighty (9;' meters from their house. They did not notice anything unusual. -eoffrey then slept in her house. 34 After considering the opposing versions of the parties, the trial court gave credence to the evidence presented by the prosecution, particularly the testimony of state witness -oel ,onCales. @t found that -essette TarroCa was killed by the accused (hristopher Gspanola, -immy Pa+uingan and -eoffrey Abello. @t rejected the defense of the accused as unnatural, incredible and riddled with inconsistencies. The three accused were convicted of the crime of <urder as the killing was attended by the aggravating circumstance of treachery. They were sentenced to suffer the penalty of reclusion perpetua and to pay a total amount of 5ne 4undred 3eventy 6ive Thousand pesos (P%:0,;;;.;;' as damages to the heirs of the victim. 4ence, this appeal where accused1appellants contend? %. T4AT T4G E5*G$ (5B$T 3G$@5B3EJ G$$G. @8 (58F@(T@8, A((B3G.1APPGEEA8T3 58 T4G 2A3@3 56 T4G TG3T@<58J 56 -5GE ,58HAEG3 *45 *A3 A8 A..@T@58AE A((B3G. @8 T4G A<G8.G. @865$<AT@58 56 ( sic' <B$.G$ A8. *453G .@3(4A$,G *A3 35B,4T 2J T4G P$53G(BT@58 A8. ,$A8TG. 2J 3A@. (5B$T, @83P@TG A8. .G3P@TG 5PP53@T@58 2J T4G .G6G83G. . T4AT T4G E5*G$ (5B$T G$$G. @8 85T ,@F@8, *G@,4T T5 T4G TG3T@<58J 56 A((B3G.1APPGEEA8T PALB@8,A8 T4AT T4G TAN@8, 56 4@3 A66@.AF@T 56 (586G33@58 2J (@TJ P$53G(BT5$ EA,(A5 *A3 85T F5EB8TA$J, A8. @8 6A(T, 4G $G6B3G. T5 3@,8 T4G 3A<G, (58T$A$J T5 T4G 3TATG<G8T 56 3A@. P$53G(BT5$ T4AT @T *A3 F5EB8TA$@EJ ,@FG8 2J T4G 3A@. A((B3G.1APPGEEA8T. &. 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T4AT T4G E5*G$ (5B$T G$$G. @8 ,@F@8, *G@,4T T5 T4G TG3T@<58J 56 -5GE ,58HAEG3 85T*@T43TA8.@8, T4G @<P$5P$@GT@G3 56 4@3 .@3(4A$,G A3 A8 A((B3G. 58 T4G A<G8.G. @865$<AT@58 56 (sic' <B$.G$, <5$G 35, 58 T4G <ATG$@AE @8(583@3TG8(@G3 56 4@3 TG3T@<58@G3, A3 25$8G 5BT 2J T4G T$A83($@PT 56 3TG85,$AP4@( 85TG3, A8. <53T G3PG(@AEEJ 58 4@3 <G8TAE @8(APA(@TJ, *4G$G 4@3 TG3T@<58@G3 *G$G $B<2E@8,. (sic' !. T4AT T4G E5*G$ (5B$T, AT T4G @83TA8(G 56 458. <53EG<G8 <A(A$A<258 G$$G. @8 <GT@8, A PG8AETJ 56 R3'L7S4$& P3RP3!7A A3 A,A@83T A((B3G.1 APPGEEA8T3, T4G EATTG$, (sic' 2G@8, A .GTA@EG. -B.,G @8 $T(, 2$A8(4 F, @E@,A8 (@TJ, *A3 T4G 58G *45 P$GPA$G. A8. $G8.G$G. T4G .G(@3@58, 85T*@T43TA8.@8, T4AT 4G *A3 85T A2EG T5 4GA$ A 3@8,EG 4GA$@8, A8. 4A. 85T 523G$FG. T4G .G<GA85$ A8. (4A$A(TG$ T$A@T3 56 *@T8G33G3 A8. A((B3G. @8 3A@. (A3G, A8. @83P@TG 56 T4G 6A(T T4AT T4G -B.,G *45 T5TAEEJ 4GA$. T4G (A3G 56 $T(, 2$A8(4 F, @E@,A8 (@TJ, (sic' 3T@EE (588G(TG. *@T4 T4G -B.@(@A$J, 2BT <G$GEJ .GTA@EG. @8 58G 56 T4G 3AEA3 56 T4G $G,@58AE T$@AE (5B$T, .AFA5 (@TJ, A8. 4G8(G, 85T $GT@$G. 5$ 65$ (sic' 5T4G$*@3G, A8. APP$5P$@ATGEJ, T4G $G(5$.3 56 T4G (A3G 345BE. 4AFG 2GG8 3G8T T5 4@<, 65$ 4@< T5 P$GPA$G T4G .G(@3@58 A8. T5 (sic' 3G8. T4G 3A<G T5 T4G (EG$N 56 (5B$T 56 $T(, 2$A8(4 F, @E@,A8 (@TJ, 65$ P$5<BE,AT@58, A8. T4B3 *A3 ( sic' T4G -B.,<G8T 56 (58F@(T@58 2J -B.,G <A(A$A<258 *A3 8BEE A8. F5@.. *e find the appeal unmeritorious. *e shall first discuss assigned errors numbers % and 0, in view of their inter1relationship.

The appellants contend that the trial court violated the rule in discharging ,onCales as a state witness. They claim that ,onCales was the only one who e)ecuted an affidavit of confession, hence, he was the most guilty of the accused and cannot be used as a state witness. To be discharged as state witness, 3ection 7, $ule %%7 of the $evised $ules of (ourt re+uires that? %. the discharge must be with the consent of the accused concerned; . his testimony must be absolutely necessary; &. there is no other direct evidence available for the proper prosecution of the offense committed; =. his testimony can be substantially corroborated in its material points; 0. he does not appear to be the most guilty; and !. he has not at any time been convicted of any offense involving moral turpitude. *e do not agree that ,onCales is the most guilty of the accused. 6rom the evidence, it appears that ,onCales is mentally retarded. 4e could not have been a leader of the group for he was intellectually wanting. 4e did not inflict any of the fatal wounds that led to the death of the victim. The trial court/s assessment that he is not the most guilty is well1 grounded. @t is also established that there was no eyewitness to the crime or other direct evidence. The testimony of ,onCales was absolutely necessary for the proper prosecution of the case against appellants. This was the decision of the prosecution itself when it moved for the discharge of ,onCales as a state witness. Part of prosecutorial discretion is the determination of who should be used as a state witness to bolster the successful prosecution of criminal offenses. Bnless done in violation of the $ules, this determination should be given great weight by our courts. The records will also show that while ,onCales rambled in some parts of his testimony in view of his low intellect, nonetheless, his testimony was substantially corroborated in its material points. 4is declaration that the victim resisted and used her bare hands in scratching her attackers is confirmed by the findings of .r. Fillarin in G)hibits >@>, >-> and >N>. 4is statement that 2eroy slashed the neck of the victim, Eangga slashed her breast and -immy stabbed her at the back finds support in the result of the autopsy of the victim/s cadaver by .r. $efe and .r. ,omeC showing incised wounds and numerous stab wounds on the front and back of the victim and incised wounds on her trachea and esophagus. 4is assertion that he and the appellants se)ually abused the victim after her death is corroborated by the lacerations found in the private part of the victim as determined by .r. ,omeC and .r. $efe. Eastly, there is no showing that ,onCales has been convicted of an offense involving moral turpitude. ,onCales also gave his consent to be utiliCed as state witness. 32 @n sum, all the re+uirements of 3ection 7, $ule %%7 of the $evised $ules of (ourt were satisfied by the prosecution and the trial court did not err in discharging ,onCales as state witness. Appellants also assail the testimony of ,onCales on the ground of his alleged mental incapacity. 3ection ; of $ule %&; provides that >e)cept as provided in the ne)t succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.> 3ection %, inter alia, dis+ualifies as witnesses, >those whose mental condition, at the time of their production for e)amination, is such that they are incapable of intelligently making known their perception to others.> A mental retardate is not therefore, per se, dis+ualified from being a witness. As long as his senses can perceive facts and if he can convey his perceptions in court, he can be a witness. 35 @n the case at bar, we find that ,onCales had a tendency to be repetitious and at times had to be asked leading +uestions, but he was not unintelligible to be beyond understanding. 4e was clear and unyielding in identifying the appellants as the perpetrators of the crime. 5n the whole, his account of the crime was coherent enough to shed light on the guilt or innocence of the accused. To be sure, modern rules on evidence have downgraded mental incapacity as a ground to dis+ualify a witness. 37 As observed by <c(ormick, the remedy of e)cluding such a witness who may be the only person available who knows the facts, seems inept and primitive. 38 5ur rules follow the modern trend of evidence. 8or can the alleged inconsistencies between the sworn statement of ,onCales and his testimony in court affect his credibility. ,onCales/ testimony jibes on material points. 4is inconsistencies on minor details of the crime are not earmarks of falsehoods. 5n the contrary, they show that his testimony is honest and unrehearsed. 39 <oreover, it is a well1 settled rule that affidavits should not be considered as the final and full repository of truth. Affidavits are usually taken e(8parte. They are oftentimes incomplete and inaccurate. 5rdinarily in a +uestion1and1answer form, they are usually and routinely prepared in police precincts by police investigators. 8ot infre+uently, the investigator propounds +uestions merely to elicit a general picture of the subject matter under investigation. 40 Thus, the fact that the sworn statement of ,onCales (G)hibit ><>' did not mention a woman from Tambacan whom they met and brought to a nipa hut and slept with on the night of 8ovember %!, %77%, is attributable to the fact that he was not asked about women other than -essette TarroCa. 4is line of +uestioning was as follows? ))) ))) ))) 6@3(AE EA,(A5? L? After %%?;; o/clock that night, where did you and your companions goI A? *e went to a grassy place in (amague, @ligan (ity to wait for a certain -essette TarroCa. L? *hose idea was it that you will wait for -essette TarroCa in that secluded place at (amague, @ligan (ityI A? 2eroy, sir. L? And eventually, did you see this -essetteI A? Jes, sir. ))) ))) ))) The presence of another woman came out only in response to +uestions propounded to him during his cross1e)amination, viz? ))) ))) ))) ATTJ. 6E5$G3? L? *ho was that woman killedI A? -essette TarroCa. L? The same woman brought to the nipa hutI 6@3(AE EA,(A5? @ object, your 4onor. . . (5B$T? *itness may answer, let him answer.

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A? 8o. (5B$T? Proceed. ATTJ. 6E5$G3? L? Jou want to tell the 4onorable (ourt, <r. *itness that there was another woman in the nipa hutI A? Jes. L? *ho was the woman in the nipa hutI 6@3(AE EA,(A5? @mmaterial . . . (5B$T? *itness may answer. A? 3he is from Tambacan. L? .o you know her name. A? 8o. (5B$T? @n other words, for the (ourt/s clarification, there were two ( ' women during that night that you found in the nipa hut that you mentionedI A? Jes. (5B$T? The other woman was killed D -essette TarroCaI A? Jes. (5B$T? The other woman was not killedI A? 8o. L? And this was not known to the authorities, the one that was not killedI A? 8o. L? *hat was only mentioned to the authorities was the one that was killedI A? Jes. ))) ))) ))) 41 @ndeed, there is no rule of evidence that would stop an affiant from elaborating his prior sworn statement at the trial itself. 41 Testimonies given during trials are more e)act and elaborate for their accuracy is tested by the process of cross1 e)amination where the truth is distilled from half truths and the total lies. The appellants also contend that ,onCales mi)ed1up his identification of appellants. @n his sworn statement, he mentioned >2eroy, -immy and Eangga> as his companions on the night of 8ovember %!, %77%, and as the ones who killed -essette TarroCa, while in his direct testimony, he named and pointed at 2eroy, (ocoy and -immy. A reading of his testimony, however, will reveal the fact that he consistently referred to appellant -eoffrey Abello as >2eroy>, -immy Pa+uingan as >-immy> and (hristopher Gspanola as >(ocoy> or >Eangga>, viz? ))) ))) ))) 6@3(AE EA,(A5? L? <r. *itness, do you know a certain 2eroyI A? Jes. L? @f this 2eroy is in court, will you please identify him by pointing at himI A? Jes, sir. L? Please point to him if he is around. A? (*itness pointing to a person who when asked identified himself as -eoffrey Abello.' L? .o you know a certain EanggaI A? Jes. L? @f he is around, will you please identify him by pointing at himI A? Jes. L? Please point at him. A? (*itness pointing to a person who identified himself as (hristopher Gspanola.' L? .o you know a certain -immyI A? Jes. L? @f he is around, will you please point to himI A? (*itness pointing to a person who identified himself as -immy Pa+uingan'. ))) ))) ))) 6@3(AE EA,(A5? L? 8ow, this (ocoy which you are referring to, is he in the courtroom at presentI A? Jes, he is around. L? Please identify him if he is around. A? (*itness pointing to a person who when asked to identify himself answered that he is (hristopher Gspanola.' ))) ))) ))) 43 The foregoing testimony of ,onCales clearly shows that appellant (hristopher Gspanola is >(ocoy> or >Eangga>. *e are not also prepared to disbelieve ,onCales simply because of his inconsistent statement as to the correct se+uence the victim was se)ually abused by the appellants. @t matters little that ,onCales was tentative on who molested the victim first, second, third and last. *hat matters is that all the appellants molested the dead TarroCa. The appellants also capitaliCe on the discrepancy in the identification of the print on the T1 shirt worn by appellant -eoffrey Abello. *hen asked to recall the clothes worn by Abello that fateful night, ,onCales stated >That one <ercy.> @n contrast, prosecution witness $omeo TarroCa testified that the light green T1shirt found near the shoes of the victim was printed with ><idwifery> and >@((>. This was corroborated by the testimony of ,eorgie TarroCa that he recalled having seen Abello wearing that night a green T1shirt printed with ><idwifery> at the back and >@((> on the front. *e uphold the e)planation of the trial court that the discrepancy could be attributed to the fact that ,onCales does not know how to read and write. *e now discuss assigned errors numbers and &. Appellants contend that the trial court erred when it ruled that the sworn statement of -immy Pa+uingan was voluntarily given by

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him though he refused to sign the same. Bnder the (onstitution and e)isting law and jurisprudence, a confession to be admissible must satisfy the following re+uirements? %' the confession must be voluntary; ' the confession must be made with the assistance of competent and independent counsel; &' the confession must be e)press; and =' the confession must be in writing. 44 @n People v. andula, 42 we ruled that an e)tra1judicial confession must be rejected where there is doubt as to its voluntariness. The fact that appellant Pa+uingan did not sign his sworn statement casts serious doubt as to the voluntariness of its e)ecution. @t is inadmissible evidence. Additionally, the claim of appellant Pa+uingan that he was not assisted by a counsel of his own choice when his affidavit of confession was taken is worth noting. Pa+uingan/s sworn statement was taken on 8ovember 0, %77%, at & o/clock in the afternoon. At that time, an information for rape with homicide had already been filed against him and his co1 appellants. 4ence, when Pa+uingan gave his confession, Pa+uingan was no longer under custodial investigation 45 since he was already charged in court. 8onetheless, the right to counsel applies in certain pretrial proceedings that can be considered >critical stages> in the criminal process. 47 (ustodial interrogation before or after charges have been filed and non1custodial interrogations after the accused has been formally charged are considered to be critical pretrial stages. 48 The investigation by 6iscal Eagcao of Pa+uingan after the latter has been formally charged with the crime of rape with homicide, is a critical pretrial stage during which the right to counsel applies. The right to counsel means right to competent and independent counsel preferably of his own choice. 49 @t is doubtful whether the councels given to Pa+uingan were of his own choice. @n her rebuttal testimony, $osita E. Abapo, declared to wit? ))) ))) ))) ATTJ. 6E5$G3? ))) ))) ))) L? @n other words, you want to tell this 4onorable (ourt as you stated earlier that it was 6iscal Eagcao who called up for these lawyersI .o you want to tell the 4onorable (ourt that these lawyers were not the counsel of choice of -immy Pa+uingan at that timeI They were not the counsel of choice of <r. Pa+uingan at that timeI (5B$T? <r. (ounsel, this witness does not know what is a counsel of choice. <ake it clearer. @t was not <r. Pa+uingan who asked that Atty. .alisay, Atty. GchaveC and Atty. (ahanap be called to represent himI *@T8G33? A? Jes, sir. ))) ))) ))) 20 <oreover, we hold that Atty. (ahanap cannot +ualify as an independent counsel, he being a Eegal 5fficer of @ligan (ity. An independent counsel cannot be burdened by any task antithetical to the interest of an accused. As a legal officer of the city, Atty. (ahanap provides legal assistance and support to the mayor and the city in carrying out the delivery of basic services to the people, including the maintenance of peace and order. 4is office is akin to a prosecutor who undoubtedly cannot represent the accused during custodial investigation due to conflict of interest. 21 Assigned errors numbered and & are therefore ruled in favor of the appellants. As to the fourth assignment of error, we subscribe to the finding of the trial court that the evidence of the accused1appellants proffers the defense of alibi. Time and again, we have ruled that both denial and alibi are weak defenses which cannot prevail where there is positive identification of the accused by the prosecution witnesses. 21 6or alibi to prosper, it is not enough to prove that the accused is somewhere else when the crime was committed but he must likewise demonstrate that he could not have been physically present at the place of the crime or in its immediate vicinity at the time of its commission. 23 @n the case at bar, it was not physically impossible for the appellants to be at the crime scene considering the pro)imity of the place where they claimed they were and the spot where -essette TarroCa was brutally murdered. *e also reject appellants/ claim that the decision of the trial court is void on the ground that the judge who penned the decision, -udge <oslemen T. <acarambon, was not the one who heard and tried the case. *e have ruled in People v. Ra5ra5, =% 3($A % "%770#, that the fact that the judge who heard the evidence is not himself the one who prepared, signed and promulgated the decision constitutes no compelling reason to jettison his findings and conclusions, and does not per se render his decision void. *hile it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision. 24 6or a judge who was not present during the trial can rely on the transcript of stenographic notes taken during the trial as basis of his decision. 22 3uch reliance does not violate substantive and procedural due process of law. *e now review the award of damages to the heirs of -essette TarroCa. *hen death occurs as a result of a crime, the heirs of the deceased are entitled to the amount of P0;,;;;.;; as indemnity for the death of the victim without need of any evidence or proof of damages. 25 Accordingly, we award P0;,;;;.;; to the heirs of -essette TarroCa for her death. As for actual damages, we find the award of P0;,;;;.;; proper considering that $omeo TarroCa spent more or less the same amount for the interment and burial of his deceased daughter. 27 *e have also awarded indemnity for the loss of earning capacity of the deceased D an amount to be fi)ed by the court considering the victim/s actual income at the time of death and his probable life e)pectancy. 28 The trial court awarded P0;,;;;.;; as compensatory damages. *e find the same inade+uate considering that -essette, who was twenty1four ( =' years old at the time of her death, was employed as a medical technologist earning P77.;; per day. 29 To compute the award for -essette/s loss of earning capacity, her annual income should be fi)ed at P&7,%=!. 0. 50 Allowing for reasonable and necessary e)penses in the amount of P%0,!;;.;; per annu%, her net income per annu% would amount to P &,0=!. 0. 4ence, using the formula repeatedly adopted by this court? ( M& ) "9; 1 age of victim at time of death#' ) a reasonable portion of the net income which would have been received by the heirs for support, 51 we fi) the award for loss of earning capacity of deceased -essette TarroCa at P!07, 7=.0;. *e also find the award of P0;,;;;.;; as moral damages proper considering the mental anguish suffered by the parents of the victim on account of her brutal murder. *e likewise uphold the award of P 0,;;;.;; as e)emplary damages considering that the killing of

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-essette TarroCa was attended by treachery. 3he was also raped while already lifeless. All these are shocking to conscience. The imposition of e)emplary damages against the appellants will hopefully deter others from perpetrating the same evil deed. @8 F@G* *4G$G56, we A66@$< *@T4 <5.@6@(AT@58 the assailed .ecision dated 8ovember %, %77=, of the $egional Trial (ourt (2ranch 0' of Eanao del 8orte, @ligan (ity, in (riminal (ase 8o. &::&. Accordingly, the monetary awards granted in favor of the heirs of -essette TarroCa are modified as follows? a' 6ifty Thousand (P0;,;;;.;;' pesos as indemnity for her death; b' 6ifty Thousand (P0;,;;;.;;' pesos as actual damages; c' 3i) 4undred 6ifty 8ine Thousand Two 4undred 8inety 6our pesos and 6ifty centavos (P!07, 7=.0;' for loss of earning capacity of said deceased; d' 6ifty Thousand (P0;,;;;.;;' pesos as moral damages; and e' Twenty 6ive Thousand pesos (P 0,;;;.;;' as e)emplary damages. (osts against appellants. 35 5$.G$G.. G.R. No. L-38532 No.e>4e% 17, 1980 THE -EO-LE OF THE -HILI--INES, plaintiff1appellee, vs. DANIEL HA8AG, accused1appellant. A<UINO, J.: .aniel 4ayag appealed from the decision of the (ourt of 6irst @nstance of .avao del 8orte, Tagum 2ranch F@@@, convicting him of rape, sentencing him to >imprisonment for the rest of his natural life> and ordering him to pay to GsperanCa $anga ten thousand pesos as moral damages ((riminal (ase 8o. % %;'. 4ssue is t)e trust-ort)iness of t)e interpreter9s verbalization of deaf8%ute9s sign language. D @n this alleged rape of GsperanCa, & , a farm girl and a deaf1mute, the case has been simplified by the admission of the accused, 4ayag, 0;, a married man with eight children, who finished grade si), that he had se)ual intercourse with GsperanCa nine times between %7:; and .ecember =, %7: in the town of (armen, .avao del 8orte. The ultimate issue is whether Firginia $anga !, a public school teacher, a college graduate and the victim/s sister, correctly and credibly interpreted and verbaliCed the sign language of GsperanCa as meaning that 4ayag raped GsperanCa on 5ctober !, %7: or whether credence should be given to 4ayag/s story that the se)ual intercourse on that occasion, as on other occasions, was voluntary. Attached to the complaint for rape was a certificate from the .avao ,eneral 4ospital that on .ecember :, %7: GsperanCa was e)amined and found to be >positive for pregnancy> (G)h. ( or %;'. 4owever, the record does not show whether she gave birth. There was no medical e)amination of GsperanCa i%%ediatel5 after t)e rape allegedly perpetrated on 5ctober !, %7: . The prosecution labored under the handicap that it could prove the alleged rape only through the sign language of the victim, GsperanCa. The victim/s sister, Firginia, who has communicated with her since childhood by means of sign language, was the sole available witness who could make known to her the +uestions on direct and cross1e)amination and could articulate her alleged answers for the record. 2ecause there was no means of checking the correctness and veracity of Firginia/s interpretation and because she herself believed that GsperanCa was raped by 4ayag, it is not surprising that the defense counsel vehemently objected to Firginia/s role as interpreter. The defense regarded her as biased and as lacking the cold neutrality of a third person acting as interpreter. As GsperanCa did not study in the school for deaf1mutes and as there was no instructor in that school available as an interpreter the trial court had no choice but to use Firginia as the medium for communicating with GsperanCa. *as she a reliable interpreterI That is the intriguing +uestion in this case. This (ourt in two cases convicted an accused of having raped a deaf1mute but in those cases an instructor in the school for deaf1mutes acted as an interpreter and the conviction was not based solely on the evidence given by the victim. @n the instant case, the judgment of conviction was based e)clusively on the story of GsperanCa that she was raped, a story made known through her sister, Firginia, who signed the complaint for rape. @n People vs. 1e Leon, 0; Phil. 0&7, the accused was charged with having raped his fifteen1year1old step1daughter, a deaf1mute The trial was held in the house, called >(ountry 4ome;> where the accused brought the girl. 3he testified in sign language which was interpreted by a teacher in the school for deaf1mutes. The accused was convicted on the basis of such testimony. @n People vs. Sasota, 0 Phil. 9%, the accussed was also charged with having raped a fourteen1year1old deaf1mute. 3he testified with the assistance of an instructor in the school for deaf1mutes. 4er testimony was corroborated by her seven1year1old sister who was present when the outrage was committed. 3even days after the alleged rape, the victim, $ufina 2arbuco, submitted to a medical e)amination. The doctor introjudo su especulum en la parte genital de ella y dicha $ufina sintio/ dolor por la introduccion de dicho instrumento>. The accused was convicted of rape. 2ut in People vs. ustos, 0% Phil. &90, a homicide case, the testimony of a deaf1mute, an alleged eyewitness, as interpreted by a teacher from the school for deaf1mutes, who did not teach the witness (the latter never having studied in such school' was not given credence. (3ee People vs. 8ava, (A =; 5.,. =& : and People vs. Tejano, (A1,.$. 8o. %70=1$, <ay 0, %707, : Felayo/s .igest : =. As to a deaf1mute convicted of robbery, see People vs. 8aCario, 7: Phil. 77;.' Rules regarding co%%unication -it) a deaf8%ute. D At the outset, it is relevant to state the jurisprudential rules for verbaliCing the perceptions of a deaf1mute. /Although in ancient times the rule was otherwise, deaf1mutes are now generally accepted as competent witnesses. @n any given case a showing must be made that the witness has a system of communication, and if he has and he is otherwise competent, his testimony will be received> (9% Am. -ur. nd %%!'. The modern rule is to the effect that deaf and dumb persons are not incompetent as witnesses merely because they are deaf and dumb if they are able to communicate the facts by a method which their infirmity leaves available to them, and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the obligation of an oath; but where the person is not so educated as it is possible to make him understand the +uestions which are put to him he is not competent (7: (.-.3. =0='.

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The method to be employed in eliciting the testimony of a deaf1mute should be that which is best suited to attain the desired end, the particular method of e)amination resting largely in the discretion of the trial court. Thus, a deaf and dumb witness may be e)amined by means of written +uestions to which he gives written answers, or he may be e)amined through the medium of an interpreter who communicates with the witness by means of signs. The +ualifications of a particular person to act as an interpreter for a deaf1mute rests largely in the discretion of the trial court (79 (.-.3. 0'. The other statements of the procedure for taking the sign1language of a deaf1mute are +uoted below? The modern and generally accepted rule is to the effect that deaf1mutes are competent witnesses where they have sufficient knowledge to understand and appreciate t)e sanctit5 of an oat) and comprehend the facts as to which they wish to speak, and are capable of communicating their @deas with respect thereto (Annotation, 7 AE$ =9 '. @f deaf1mutes have sufficient understanding to comprehend facts about which they undertake to speak, and appreciate t)e sanctit5 of an oat), they may give evidence by signs, or through an interpreter or in writing, and such testimony, through an interpreter, is not hearsay (2ugg vs. Town of 4oulka, 9= 3o. &9:, 7 AE$ =9;'. @t has been said that a court has the inherent power to elicit testimony from a competent deaf1mute by whatsoever means necessary to the end to be obtained, and that the manner in which the e)amination of a deaf1 mute should be conducted is a matter to be regulated and controlled by the trial court in its discretion. 4owever, it has also been said that the best method should be adopted. And there is authority to the effect that the method adopted will not be reviewed by an appellate court in the absence of a showing that the complaining party was in some way injured by reason of the particular method adopted. @n fact it has been said that, in the absence of a showing as to what constituted the best method of taking a deaf1mute/s testimony, it will be presumed on appeal that the trial court adopted the best method. As is stated in the authorities approved in ugg vs. !o-n of Houl2a , 9= 3o. &9:, 7 AE$ =9;, the general rule is that deaf1mutes who are competent to testify may give evidence by signs, or through an interpreter, or in writing. <ore specifically it has been held that a deaf1mute who can read and write may testify through that medium. Thus, in Ritc)e5 vs. People (%97!', & (olo &%=, =: Pac. : , a deaf1mute was e)amined by submitting to him written +uestions, to which he replied in writing, which +uestions and answers were then read to the jury. And the general rule is that the evidence of a deaf1mute who can be communicated with by signs may be taken through an interpreter who understands such signs and can interpret them to the court. And it has been held that it is permissible to take the testimony of a deaf1mute through an interpreter by signs notwithstanding the evidence could have been written. At least where there is no showing that the interpretation by signs is not the better method. And especially where it appears that the witness is capable of relating the facts >correctly> by signs, but, while able to read and write, can only communicate @deas imperfectly/ by writing. And it is not necessary that the witness be able to read and write. 4owever, it has been said that it would seem to be better in the case of a deaf and dumb witness who can read and write to conduct his e)amination in writing. *ith respect to the conducting of the e)amination of a deaf1mute itself, it has been held that the allowing of leading +uestions is in the discretion of the court. This discretion was said to arise out of the fact that /there is always more or less difficulty in eliciting testimony/ where the witness is a deaf1mute (Annotation, 7 AE$ =9 1=9='. Procedure follo-ed b5 t)e lo-er court in *ualif5ing #irginia Ranga as an interpreter of )er sister9s sign language.D 4ow to communicate with the victim, GsperanCa, was the problem of the municipal judge during the preliminary e)amination. GsperanCa knows how to sign her name and to read and write figures. That was all. The complaint for rape, filed in the municipal court on .ecember !, %7: , was signed by GsperanCa. 4er sister Firginia certified under oath that she translated, interpreted and e)plained the contents of the complaint >faithfully and truthfully through sign language> to GsperanCa (p. %, $ecord'. At the preliminary e)amination, the municipal judge tested the capacity of Firginia to communicate with GsperanCa. Firginia admitted that there were deficiencies in her mode of communication with GsperanCa. Firginia testified? %:. L? (by municipal judge'. 4ow ade+uate is the communication between GsperanCa $anga and youI D A? 8ot too much but @ think only a few things which she wish to convey which @ do not understand. %9. L? *ould you ten me one or two of these few things which you don/t understandI D A? Those things which are very deep like for e)ample those invisible -ords. %7. L? *hat do you mean by invisible wordsI D A? 6or e)ample, t)e %eaning of t)e -ord 9trut)9 whereby @ could not e)pect to her in one sign only the meaning of the word /truth/ but @ could only e)plain that through other signs. ;. L? These signs that you employ in communicating between you and GsperanCa $anga, are these conventional signs or the /.eaf and .umb signsI D A? 8o, sir. %. L? *hat then are the signsI D A? -ust like the actions. . L? @n other words, 5ou :ust contrived or i%provised t)e signsI D A? Jes, sir.

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&. L? 6or how long a time have both of you been at this means of communicationsI D A? 3ince my birth. =. L? Jou mean that when you were born you ready communicate with each otherI D A? 8ot e)actly but when @ already teamed to talk and she could not understand. 0. L? .o you still employ the same improvised signs in communicating with your older sisterI D A? Jes, sir. !. L? 4ave you ever revised or modify these so1 called improvised signsI D A? 8o, sir. :. L? Jou have improvised along the way, have youI D A? Jes, sir. 9. L? 3uppose you wanted to convey to your older sister the meaning of? /3he better dress up because you are going to bring her to the (ourt/. 4ow would you communicate with your sisterI A? (The witness demonstrated by raising her two hands from the head then downward which would imply putting on the dress; her right hand placed over the nose which means /good or beautiful/ and touch her older sister (GsperanCa' on her shoulder and pointing towards her and touching both of them with the same hand gesturing towards the road and a sign indicating a roof which implies the <unicipal 4all.' The (ourt is of the opinion that witness may ade+uately communicate with her older sister GsperanCa $anga through their improvised sign language. @n view thereof, this (ourt hereby commissions Firginia $anga to act as an interpreter for her sister, GsperanCa $anga, in this preliminary e)amination (pp. %01%!, $ecord'. The municipal judge then asked Firginia to take an oath as an interpreter. After taking the oath, the judge instructed Firginia to ask GsperanCa whether the latter understood the meaning of an oath. GsperanCa replied by signs that she would tell the truth. According to the sign language of GsperanCa, as interpreted by Firginia, the alleged rape was committed in this manner? *hile she (GsperanCa' was she was pulled away from the road and then she resisted and (was' dragged until she was kicked on her leg whereby she stumbled down. The one (4ayag' who pulled her bo)ed her on her breast and on the legs and then she lost consciousness and then when she lost consciousness, she did not know what happened. *hen she regained consciousness, she found out that she was raped by the man who pulled her (pp. %!1%:, $ecord'. GsperanCa @dentified the man who raped her as a person with a mole between his eyes just below his forehead. 3he pointed to 4ayag as the rapist. 4ayag and his counsel were present at the preliminary e)amination. The rape was not reported because 4ayag told GsperanCa that she would be killed if she divulged the rape to anybody (p. %9, $ecord'. 4ayag waived the second stage of the preliminary investigation. The case was elevated to the (ourt of 6irst @nstance where the provincial fiscal filed an information for rape dated 6ebruary % , %7:&. The trial court tested Firginia/s capacity to communicate with GsperanCa in sign language improvised by the two sisters, a procedure opposed by defense counsel, as may be seen from the following transcript? Private prosecutor? ... since the complainant, your 4onor, is a deaf1mute, we wig present her sister as an interpreter, and we will +ualify the sister to act as an interpreter. ... .efense counsel? ... we object to the competency (of Firginia' on the ground that this witness is not an e)pert witness to interpret the language of a deaf1mute. 3he would not be competent as to the sign to be conveyed to her, and finally it would be prejudicial and biased, your 4onor. ... @ believe, your 4onor, that this case is so serious as it involves the liberty of the accused, and if we will be hasty in proceeding ... even granting that the witness can be able to perceive and communicate, there is no definite provision in the $ules of (ourt that a sister could be +ualified as an interpreter to a deaf1mute. ... (ourt? ... the (ourt win allow her (the sister' to be an interpreter in the case as long as she can be +ualified to interpret the signs of her sister. .efense counsel ... And granting that the sister will be allowed to translate and interpret in behalf of the offended party, )o- -ill -e be so sure t)at t)e sister -ill conve5 t)e sa%e translation as t)e offended part5 -anted to conve5 to )erI ... Private prosecutor? ,ood faith is presumed, your 4onor please. 2ad faith is not presumed. ... (ourt? *ell, anyway, those are recorded already and in case of an appeal, those can be taken up because those will appear in the transcript of the stenographic notes, all the objections that you have raised insofar as allowing the sister of the offended party to interpret her sign language. .efense counsel? ... we will submit a memorandum to that effect that the sister is the interpreter in this case, she being not competent and e)pert witness. (ourt? *ell, she is not presented here as an e)pert witness. 3he is just being used now as an interpreter, and you are objecting to thatI .efense counsel? ... *e are really seriously objecting. (ourt? ... the appellate court will be guided by the stenographic transcript whether you made your observation and your objection in time before a person is allowed to be an interpreter in a case like this. *e cannot also ask say a teacher in (the' school for deaf1mutes to be an interpreter here because, probably, if that deaf1mute did not go to the school for deaf1mutes, she would not know the sign language of the teacher. 3o, probably, this is my personal observation, that they should adapt themselves to the circumstances of the situation. 8ow, since their sister

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is dumb and cannot hear, and because they were living together, they have to devise a way by which they could communicate (with' each other, and, probably, not the same sign language in the school for deaf and dumb persons. 3o, in the interest of justice, the (ourt will allow the sister to interpret the testimony of the offended party. (=1%% tsn -une %%, %7:&'. After Firginia had taken her oath and testified that she and GsperanCa had been communicating by means of sign language since childhood, she was directed to ask GsperanCa/s name. Firginia made a sign to GsperanCa to sign her name. GsperanCa wrote on a piece of paper >GsperanCa $anga <ay &, %7: > (%:1%9 tsn -une %%, %7:&'. *hen the trial judge directed Firginia to ask GsperanCa why she was in court, GsperanCa moved her head sidewise and placed a finger on her lips. 3he was not able to answer that +uestion in sign language because, as the private prosecutor himself admitted, it is difficult to formulate a >why> +uestion in sign language (%:1%7, & tsn'. The fiscal noted that GsperanCa could answer ;-)at -)ere and -)en; *uestions but it -ould be difficult to %a2e )er understand a ;-)5; *uestion because ;t)ere -ere certain *uestions t)at s)e cannot easil5 understand; ( !1 : tsn'. The following portion of the transcript is a sample of how Firginia communicated with GsperanCa on direct e)amination? L. Alright. Tell her (GsperanCa' to demonstrate to kick her right legI D A. Jes,sir. (*itness1interpreter/s sister doing the same.' L. Tell her to repulse or fight back an opponent when she is attackedI D A. Jes, sir. (The sister doing the same.' L. Eet us be specific. .oes your sister know how to look (up' a date in the calendarI D A. Jes, sir. L. Jou taught her. D A. 3he has an @dea. L. Alright. .o you have ... a calendarI D A. Jes, sir. ))) ))) ))) L *ill you tell your sister to point to figure :I D A. Jes, sir. (*itness1interpreter translating the same to her sister in sign language and the sister likewise pointed to figure :.' L Tell her to point to 8o. &. D A. Jes, sir. (*itness1 interpreter translating the same to the sister and the sister pointing also to 8o. &.' L *hat about the month appearing in that calendar, can she readI *hat is that month there appearing there in that calendar for %7:&, in her sign languageI ... D A. 3he cannot read. L 2ut she can read the days or the numberI D A. Jes, sir. L (an she point to 8o. %9I (*itness1interpreter translating the same to the sister, and the sister pointing also to 8o. %9.' L Alright. 8ow, how would she communicate the month of a year. *hat month is she referring when she refers to a date, for e)ample. 4ow will she communicate that with youI D A. 3he will use the calendar, sir. L 2ut she cannot read the month in the calendar, she said already. @s it notI D A. 3he can understand, and at least she can point. L Alright.*ill you tell your sister to see in that calendar the month of -ulyI D A. *e still need to write the month, sir. L Jou give her a piece of paper and write there -uly. Then let her locate it there in the calendar. D A. Jes, sir. (*itness1interpreter doing the same and the sister located the month of -uly.' L 8ow, tell her to locate the month of 8ovember. D A. Jes, sir. (The sister locating the same ' L *ill you tell her whether she knows the days in the week, like <onday, Tuesday, *ednesday like thatI D A. Jes, sir. @ think she knows. L And what are the days in the weekI Ask her. D A. 3he does not know, sir. L .o you know what day is todayI Ask her. D A. Jes, sir. (*itness1interpreter translating the +uestion to the sister, and she pointed to -une %% in the %7:& (alendar.' L 8ow, can you point therein the calendar any dayI D A. (The sister pointed to Tuesday after the +uestion was properly translated to her by the witness1 interpreter.' >(ourt? <ake it of record that she pointed to Tuesday. L by (ourt? .o you know what day is todayI (*itness pointing to -une %% in the %7:& calendar.' D A? (by *itness1interpreter'? 3he does not know, your 4onor. L by (ourt? .o you know what is todayI D (*itness pointing to -une %% in the %7:& calendar.' (ourt? @ think she can ade+uately communicate, perhaps not to our satisfaction. Alright, ... (To the *itness1@nterpreter Firginia'? .o you swear to interpret faithfully and to the best of your knowledge the +uestions to your sister and the answers that she gives to the +uestionsI D *itness1@nterpreter? Jes, your 4onor. (ourt? Alright. (To private prosecutor 'Jour first witness

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Private prosecutor? 5ur first witness is the complainant herself, your 4onor. (ourt? Put her on the stand. (&;1&: tsn.' The oath was then administered to GsperanCa. 4ow it was administered is not shown in the record. @t should be recalled that Firginia testified that >invisible words> like truth cannot be made known in sign language to GsperanCa. *hen GsperanCa was asked as to her age, she write on a piece of paper ><ay &, %79& & > (&7 tsn -une %%, %7:&'. !esti%on5 of 3speranza as verbalized b5 )er sister #irginia. D GsperanCa resided in (armen and worked in the ricefield of her brother .encio 3he used to walk from her house to the ricefield which was +uite far. Bpon being asked, GsperanCa pointed to the figure > !> in the calendar. 3he worked in the ricefield on 5ctober !, %7: up to the time in the afternoon when the sun was in a certain position which, as calculated by the court, meant that it was appro)imately three o/clock. 3he was on her way home alone. 3he sketched the road leading to the highway which was taken by her and the scene of the alleged rape (G)h. A or '. *hen she reached a grassy spot along the road, her left hand was pulled by a man with a mole between his eyebrows whom GsperanCa @dentified as 4ayag who was in court. 4ayag pulled her to the grassy bush. (At this point, defense counsel manifested that GsperanCa did not make any sign that she was pulled to the grassy bush and that it was Firginia, the interpreter, who supplied that allegation, =: tsn'. GsperanCa resisted but 4ayag kicked her in the right leg and she stumbled. 4ayag choked her while she was prostrate on the ground. Asked if she was bo)ed, GsperanCa replied that 4ayag bo)ed her on the chest while he was standing. At this point, GsperanCa went down the witness stand and demonstrated how she resisted. 4ayag removed her short pants and kissed her and then, as stated by the interpreter, she was raped. Asked the leading +uestion of whether she was unconscious when she was raped, she replied in the affirmative and added that she regained consciousness after she was raped. 4er pants were on her side on the ground. There was blood in her private part. 3he pushed aside 4ayag. 4ayag stood up and told GsperanCa not to tell anybody what happened or else he would kill her. 4ayag picked up her pants and threw them over her body and left. 3he put on her pants and went home crying. 3he was still crying when she arrived home but she did not disclose to her mother the alleged rape because of the threat made by 4ayag. GsperanCa indicated in the sketch the spot where she was raped on 5ctober !, %7: , @dentified as G)hibit A1 or 1A (!& tsn'. According to GsperanCa. on .ecember =, %7: she encountered 4ayag in the same place but she avoided him by passing near the central school and going to the house of her sister1in1law, as indicated in the sketch, G)hibit A. 3he arrived home at eight o/clock in the evening and reported the rape incident to her mother. Ha5ag9s stor5. D To support his defense that his se)ual intercourse with GsperanCa was voluntarily consummated and was not accomplished through force or against her will, he testified that he and GsperanCa, whom he had known for more than fifteen years, loved each other. They were neighbors in the town of (armen. 4ayag/s daughter Gster is married to Antonio, a brother of GsperanCa. Their liaison allegedly started one morning in .ecember, %7:; when GsperanCa appeared at the foot of the stairs of his house and made a sign that she wanted to drink water. 4ayag signalled her to go upstairs. 4e was absent from work on that day. 4e went to the kitchen where GsperanCa followed him. After she had drunk water, she made a sign by pointing to herself and to 4ayag and placing her two fingers side by side or ju)taposing them. 4ayag said that by means of that sign GsperanCa wanted to convey that she and 4ayag were sweethearts. 4ayag nodded to show his assent to GsperanCa/s offer of love. 4ayag said that thereafter GsperanCa embraced him and they kissed each other. After the embrace, GsperanCa disengaged herself and formed a circle with her left thumb and inde) finger and inserted into the circle the fingers of her right hand, repeatedly making a push1 and1pull movement. That signal meant that she wanted se)ual intercourse. @n answer to that signal, 4ayag nodded. GsperanCa took off her panties and because the kitchen floor /was dirty 4ayag indicated to her that they would have se)ual congress on the table which was clean. /They performed the se)ual intercourse on the table and reached the clima) in about five minutes. After they went down from the table, they embraced and kissed and GsperanCa allegedly made a sign that they should repeat the se)ual act. At that juncture, 6lorita 4ayag/s daughter, barged in and saw them. They separated. 6our days later, GsperanCa met 4ayag at about si)1thirty in the morning at the crossing or intersection of the highway going to Tagum and the road going to Tibal1og in the vicinity of the bridge and the chapel. There was a grassy spot in that place (G)h. 7 and A'. There, they had se)ual intercourse for about five minutes. @n the meantime, 6lorita reported to her mother, Adoracion, that she had seen 4ayag and GsperanCa in a compromising situation. 4ayag and his wife +uarrelled. <rs. 4ayag and her three daughters left the conjugal abode and took refuge in her mother/s house in <aco. 4ayag was able to persuade his wife to return to their house after he had promised not to have anything more to do with GsperanCa. 6or more than a year, 4ayag lived up to his promise. Then, in the morning of <ay % , %7: , 4ayag met GsperanCa on the highway while he was waiting for transportation to take him to his work as a foreman <capataz= of the 2ureau of Public 4ighways in <awab 8abunturan. 5n that occasion, GsperanCa allegedly made a sign to him that they should have se)ual intercourse, pointing to him the grassy spot where they had done it before. 4ayag made a counter1sign to convey to GsperanCa the message that they should have se)ual intercourse after he had cleared a spot amidst the dense tala)ib grass. @t took 4ayag three days to prepare the place of assignation (3ee photographs, G)h. 0 to 9'. 5n <ay %0, %7:& he and GsperanCa allegedly had se)ual intercourse in the spot which he had cleared. Thereafter, they had si) other acts of se)ual intercourse in that place. A white plastic raincoat allegedly belonging to GsperanCa was used to cover the ground (G)h. ='. 4ayag specified that he had carnal intercourse with GsperanCa on 3eptember and &, 5ctober ; and !, 8ovember = and .ecember =, %7: . GsperanCa allegedly advised 4ayag to remember the dates because she might become pregnant. The last three acts of se)ual intercourse took place in the afternoon after 4ayag had come from work and while GsperanCa was on her way home from the farm (%&1%= tsn 5ctober !, %7: '.

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After each se)ual intercourse, GsperanCa would take 4ayag/s ball pen and write the date on the palm of his hand. 4ayag himself did not make any record of the dates of the se)ual intercourse. 4e committed them to memory @n the afternoon of .ecember =, %7: , after 4ayag and GsperanCa had se)ual intercourse in their usual trysting place (G)h. 0 to 9', they were seen in that vicinity by -ose 3antillan, a close friend of 4ayag, and by Gsteban $anga, the uncle of GsperanCa, who appeared to be angry and who held her and brought her home. Two days later, or on .ecember !, 4ayag was arrested by Patrolmen $olando Jambao and 3amuel (asuga because GsperanCa/s mother and uncle had charged him with rape. 4ayag/s daughter 6lorita and his wife Adoracion corroborated his testimony as to the +uarrel between him and his wife when she learned that he had an affair with GsperanCa. 6lorita testified that GsperanCa cried when she learned that 4ayag was in prison and in sign language she allegedly made it known that she had voluntary se)ual intercourse with 4ayag and that, to prove that she loved 4ayag, she (GsperanCa' gave to 6lorita the plastic raincoat already mentioned (G)h. ='. -ose 3antillan, a farmer, a friend of 4ayag and a neighbor of the $anga family, testified that as a Peeping Tom or voyeur, he witnessed the se)ual intercourse between 4ayag and GsperanCa in the afternoon of .ecember =, %7: in the grassy spot mentioned by 4ayag in his testimony. The trial court reacted in disbelief of 4ayag/s story. @t branded 4ayag/s version as unusual and biCarre. @t concluded that 4ayag took advantage of the physical defect of GsperanCa and that he was under the illusion that because she is a deaf1mute she would not be able to communicate the outrage perpetrated against her. Ruling. D 4ayag/s counsel de oficio contends in this appeal that the trial court erred in basing the judgment of conviction on the testimony of GsperanCa in sign language as verbaliCed by her sister, an alleged biased interpreter. *e have conscientiously e)amined the record. 5ur conclusion is that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. The culpability of 4ayag cannot be made to rest on the uncorroborated story of GsperanCa, as conjectured by her sister and mother. That story in itself is not clear, convincing, positive and free from suspicion. @t is not impeccable and does not ring true throughout (People vs. Ariarte !;, Phil. & !'. Eack of tenacious resistance on the part of GsperanCa $anga, her delay in reporting the alleged rape to her mother and the absence of an immediate medical e)amination of her private organ are circumstances creating reasonable doubt as to the commission of the rape. 6rom GsperanCa/s version, as articulated by her sister, it is at once evident that GsperanCa did not offer much resistance to the alleged se)ual assault made by 4ayag. 3he did not suffer any physical injuries. 4er dress was not torn. 3he did not attempt to free herself from the clutches of 4ayag. This is not a case of a teenage girl being raped by a strong and robust adult. This is a case of a thirty1two1year1old farm girl who was allegedly forced to have carnal intercourse by a fifty1year1old man. 4er story does not contain details as to how she repelled 4ayag/s attempts to ravish her. And that story was not recounted by her directly in her own words but was made known by means of sign language which was interpreted by her sister. The trustworthiness of that interpretation is doubtful. The defense objected to such interpretation. The probability of error or fabrication in such a case is very manifest. As observed by -ustice Filla1$eal, that is a dangerous procedure for ascertaining the truth especially in a case where the liberty of an accused is at stake (People vs. 2ustos, 0% Phil. &90, &7;'. The court and the accused have no means of checking the accuracy of the verbaliCation made by the interpreter who is herself interested in sending the accused to prison. @t is difficult to rape a healthy adult woman without the help of confederates or without terrifying her with a deadly weapon. @f she makes a vigorous resistance, the likelihood is that the lascivious desire of her assailant would be foiled. The resistance would, as in this case, be more effective in an open field where there are more chances of eluding the assailant or frustrating his advances. The rape committed by a man without the assistance of other persons is possible but is a rare case. ( (uello (alon, .erecho Penal, %7:0 Gd., 099; People vs. 2arbo, E1&;799, <arch 7, %7:=, 0! 3($A =07, =!:.' Then, there is the fact that although the alleged rape took place on 5ctober !, %7: , it was only forty days later, or on .ecember =, that GsperanCa confided to her mother (by means of signs, of course' that she was supposedly raped. 4er story was not corroborated. The uncorroborated testimony of the offended woman may be sufficient under certain circumstances to warrant a conviction for rape. Jet, >from the very nature of the charge and the ease with which it may be made and the difficulty which surrounds the accused in disproving it where the point at issue is as to whether the cohabitation was had with or without the use of force or threats, it is imperative that such testimony should be scrutiniCed with the greatest caution.> ((arson, -., in B.3. vs. 6lores, ! Phil. ! , !9.' @n all such cases t)e conduct of t)e -o%an i%%ediatel5 follo-ing t)e alleged assault is of the utmost importance as tending to establish the truth or falsity of the charge. @ndeed it may well be doubted whether a conviction of the offense of rape should ever be sustained upon the uncorroborated testimony of the woman unless the court is satisfied beyond a reasonable doubt that her conduct at the time -)en t)e alleged rape -as co%%itted and i%%ediatel5 t)ereafter -as such as might be reasonably e)pected from her under all the circumstances of the case. (B.3. vs. 6lores, pp. !91 !7.' <oreover, the case for the prosecution was irreparably impaired by the inconsistencies committed by the complainant/s mother, <rs. $anga. 3he first swore that according to her interpretation of GsperanCa/s sign language five rapes were admitted on different dates. Then, she rectified her first affidavit and swore in a second affidavit and during the preliminary e)amination that only one rape was committed. (G)h. % and &.' 5n the witness stand, she declared that the rape was committed on 1ece%ber >, +?@A but on cross1e)amination she declared that her daughter was abused on $ctober AB, +?@A. (ontrary to the prosecution/s theory, <rs. $anga testified that 4ayag did not do anything to GsperanCa on .ecember =, %7: (0! and !0 tsn August !, %7: '. *4G$G65$G, the trial court/s judgment of conviction is reversed and set aside. 5n the ground of reasonable doubt or the insufficiency of the prosecution/s evidence, defendant .aniel 4ayag is ac+uitted of the charge of rape. (osts de oficio. 35 5$.G$G..

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G.R. No. 94249 Au"u&' 9, 1993 -EO-LE OF THE -HILI--INES, */($n'$##-(**e//ee, .&. RIC:8 SUETA, ())u&e!-(**e//(n'. The 3olicitor ,eneral for plaintiff1appellee. -ustiniani Prado K Associates for accused1appellant. $G,AEA.5, ".C Persistent in his avowals of innocence, accused1appellant $icky 3ueta seeks the reversal of his conviction by 2ranch %7 of the $egional Trial (ourt of $o)as (ity for the crime of rape in (riminal (ase 8o. (1&;:; thereof. .eplorably, that conviction also stands as a societal indictment, for the unfortunate victim, ,oldie $uth T. 6uentes, was only five years of age at the time. The sworn complaint initiated by the girl/s grandmother and guardian, 6edelina A. Tan, and the corresponding information signed by Assistant (ity Prosecutor Fictor (. Posadas, both of which were filed before the said trial court on -anuary 0, %77;, charged that on .ecember &;, %77;, appellant willfully, unlawfully and feloniously had carnal knowledge of ,oldie $uth T. 6uentes in $o)as (ity. % Appellant was apprehended by elements of the $o)as (ity Police 6orce a few hours after the incident at the place where the rape allegedly took place. Although no bail was recommended by the prosecution for his temporary release, appellant nonetheless prayed that he >be granted bail in the amount of P=;,;;;.;;.> The trial court conse+uently set the application for hearing on -anuary %0, %77;, with the stipulation that the evidence adduced therein would be considered part of the evidence in the trial on the merits. 5n 6ebruary 7, %77;, the trial court issued an order denying appellant/s application for bail. The court opined that the prosecution had clearly established in pri%a facie case for the crime charged and the evidence it had adduced was strong enough to show appellant/s guilt and to warrant the filing of an information in court. &Bpon his arraignment on 6ebruary %&, %77; with the assistance of counsel, appellant pleaded not guilty to the charge against him. The trial court thereafter set and conducted the trial of the case on the merits. = The factual antecedents of the present case, as established by the evidence, are well recounted by the trial court in its decision and are best reproduced hereunder? @n her testimony, the alleged victim of rape, ,oldie $uth 6uentes, at 0 a girl of very tender age and a kindergarten pupil, told the court that as of .ecember &;, %797, she was living with and under the care of her maternal grandparents who were operating a store at $o)as Avenue, $o)as (ity, because her parents were working abroad. 4er mother was working in @taly and her father was in 4ongkong. @n terms surprisingly clear and unambiguous for a child so young and tender, she related before the court her story. At about % noon of .ecember &;, %797, she and a playmate, Temar 4oo, also a girl about her age, were playing >monkey1monkey>, jumping up and down in a small hut standing on a vacant lot behind a bakeshop in $o)as Avenue, $o)as (ity, near her grandparents/ store. 3uddenly, accused $icky 3ueta whom she identified and pointed to in court asked her and Temar to play a game couples play. 3ueta was lying down on the flooring of the hut and he told her to sit on his thighs, at the same time pulling down her panties. And then 3ueta inserted, to use her term, his >bird> into her >flower>. 2ecause it was done with some force, she shouted as it was painful. 3he felt something hard and solid and then warm li+uid getting inside her genitals. The accused was moving his body sideways and intently looking at her as he did so. At this juncture, a certain >(ano> (Eolito 5bligacion', who was tending to a few fighting cocks nearby, shouted, >,oldie, your grandmother is coming.> 5n hearing that, she stood up, descended the stairs of the hut, and rushed to her grandma and guardian, 6edelina A. Tan. ,randmother and granddaughter then went home together. 5n reaching home, she confided to her Eola that she felt pain in her >flower> because $icky 3ueta inserted his >bird> into it. Then her aunt, <arie Eis A. Tan, a registered nurse, and her uncle, *ilfredo Tan, a physician, took a look at her genitals and decided to take her to the $o)as <emorial ,eneral 4ospital here in $o)as (ity for physical e)amination. At the $o)as <emorial ,eneral 4ospital, ,oldie $uth 6uentes was subjected to a pelvic e)amination by .r. <a. Eourdes Eanada, the resident physician then on duty. 4er findings are reflected in a medical certificate marked by the defense as G)h. >%> (p. , record'. @t shows that the genitalia was grossly normal, that in the labia minora there was a % cm. old healed laceration, lower &rd right, that the hymen was open and intact, and that there was no presence of spermatoCoa. The grandmother and guardian of ,oldie, 6edelina Tan, testified that at about noon of .ecember &;, %797, she was tending their grocery store along $o)as Avenue, $o)as (ity. A few minutes before, she saw ,oldie playing with a playmate. At about noon, she started looking for her granddaughter as the child had not come home as she used to before noontime. 3he sent one of their salesgirls to look for her in the neighboring establishments. The salesgirl having failed to find the child, she herself went out to look for her. 3he went to several stores nearby and when she entered the 6amily 2akeshop a man informed her that ,oldie was playing in the backyard, near the poultry. 3he hastened to the place, and as she was approaching a small hut that man shouted, >,oldie, your grandmother is here.> *hen she called her, ,oldie came down from the hut. 3he saw the accused lying down. *hen they reached home, 6edelina said she bathed ,oldie and changed her clothes. @t was then that the little girl started complaining that her genitals were painful. Asked why, the girl answered it was because the accused inserted his se) organ into hers. The little girl said this in a more pictures+ue language? ><y flower is painful because $icky inserted his bird inside it.> 4earing that, she took a good look at her genitals and she saw a small laceration and a little bleeding. 3he +uickly summoned her son, .r. *ilfredo Tan, and his wife, <arie EiC, a registered nurse, and told them to e)amine the child. The two +uickly concluded that their niece was a victim of a criminal assault. And so the two took ,oldie to the hospital for physical e)amination.

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6rom the hospital, .r. Tan took ,oldie to the $o)as (ity Police 3tation to lodge their complaint for rape against the accused. Patrolman $osendo Abo1ol and three other policemen were then ordered by a police lieutenant to proceed to the 6amily 2akeshop to pick the accused up (sic' for +uestioning. The policemen found the accused behind the 2akeshop to pick the accused up (sic' for +uestioning. The policemen took the accused to the police station, and on arrival, Pat. Abo1ol saw ,oldie point to the accused as the man who criminally assaulted her. The girl/s uncle, .r. *ilfredo Tan, told the court that when his mother 6edelina called him and his wife <arie EiC to e)amine the little girl who was complaining of pain in the vagina, they made her lie down, spread her legs and took a look at her genitals. They saw a laceration at the right labia minora, with redness and swelling. (ertain that his niece was criminally assaulted, he and his wife took her to the hospital for pelvic e)amination. A few days later, he accompanied his niece to .r. 2isnar, and then to .r. -aboneta in @loilo (ity for further pelvic e)amination. The testimony of .r. Tan was corroborated in all its material points by his wife, <arie EiC A. Tan. 0 Appellant does not deny that he was with the victim and her playmate, Thissa <arie (>Temar>' 4oo, at the time of the incident. *hat he vehemently disputes is the alleged commission of the rape on the victim. 4e recalled at the witness stand that in the morning of .ecember &;, %77;, ,oldie $uth and Temar 4oo were playing children/s games at the hut where he usually rested and slept. 4e had been recently hired by his brother1in1law, *ilfredo 4oo, to take care of the latter/s fighting cocks. Apart from serving as his sleeping +uarters, it was in that hut that he kept watch over *ilfredo 4oo/s game fowls. ! Appellant further claims that an assistant, Eolito (>(ano>' $odrigueC, tended to the fighting cocks nearby. As noontime approached, appellant decided to take an early nap and he soon fell asleep. After a while, he was roused from slumber by the noise created by the playful girls. @t was then almost high noon and it was at this time that ,oldie $uth/s grandmother arrived to fetch the girl. Appellant narrated that when her grandmother called out for her, ,oldie $uth clambered out of the hut but fell on her buttocks. The girl was aided back on her feet by her grandmother and, together, they departed for home. 3hortly thereafter, appellant resumed his interrupted sleep. : A few hours later, appellant was awakened by his father who told 3ueta that some policemen were looking for him. Appellant then appeared before the law enforcers and went voluntarily with them to the $o)as (ity police station. There, he was surprised to know of the accusation against him. According to appellant, he was maltreated by the policemen when he professed his innocence. 3ince then, he has been under detention. 9 3atisfied beyond reasonable doubt that appellant had indeed perpetrated the dastardly deed on ,oldie $uth 6uentes, the court a *uo rendered its verdict of guilt on -une %, %77;, sentencing appellant to serve a term of >imprisonment for life ( reclusion perpetua', 7to indemnify the victim, her guardian andMor parents in the amount of P 0,;;;.;;, and to pay them P:,;;;.;; >as reimbursement for the private prosecutor/s fee.> The court also credited appellant in the service of his sentence with the full time that he spent under preventive imprisonment. %; @n this appeal, appellant insists that the trial court committed a grave error when it gave more credence to the testimonies of the witnesses for the prosecution, particularly the testimony of the victim herself, ,oldie $uth, than to the version of the defense. 4e contends that the trial court failed to take into account the >story1telling> habit of the girl and the inconclusive medical findings of the doctors who e)amined ,oldie $uth. %% After a thorough and careful review of the records, we have perforce to reject appellant/s contentions, fully convinced as we are of the utter lack of merit in the theory and evidence of the defense. At the outset, it may be well to recall some doctrines that generally guide the courts in arriving at a just verdict in prosecutions for rape, to wit? (%' An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to refute; ( ' @n view of the intrinsic nature of the crime where two persons are usually involved, the tes timony of the complainant must be received with e)treme caution; and (&' The evidence for the prosecution must stand or fall on its own merits, and must not be allowed to draw strength from the weakness of the evidence for the defense. % As in most criminal cases, the issue here boils down to the favorable appreciation by the trial court of the testimonies proffered by the litigants. @n this particular case, the trial court gave more weight and credence to the declarations of the witnesses for the prosecution and, on that score, the settled rule is that such a finding must be respected, given the natural advantage that a trial judge has in the calibration of such evidence. %& As earlier stated, the offended party, ,oldie $uth T. 6uentes, was only five years old at the time of the rape. At such a tender age, she could not be e)pected to weave with uncanny recollection such a complicated tale as the se)ual assault that appellant unconscionably perpetrated on her. 3he spontaneously narrated to her grandmother, uncle and aunt, to *ilfredo 4oo and his spouse, and ultimately to the court, her ordeal at the hands of appellant. *itness the spontaneity and clarity of her testimony on the stand? L 5n .ec. &;, %797, at about noontime, can you recall where were youI A Jes, sir. L *here were you on .ecember &;, %797 at about noontimeI A @ was in a nipa hut. L *hat were you doing in the nipa hut on that date and timeI A @ was playing. L *ith whomI A @ was playing with Timar. L *ho else were present when you were playing with TimarI A $icky. L *ill you please look around and tell us if $icky 3ueta is inside this courtroom nowI A 4e is the one. (*itness pointing to a man inside the courtroom who when asked answered that his name is $icky 3ueta'. L *hat kind of game did you play with Timar on .ecember &;, %797, at the nipa hutI

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A *e were playing just like couples. L 8ow who told you to play a game of just like couplesI A $icky. L 8ow, did $icky participate in your game just like couplesI A Jes, sir. L (ould you tell us what did $icky do to youI A 4e forced his organ (in'to my genitals. L *hen he forced his organ in(to' your genitals, what did you doI A @ shouted. L *hy did you shoutI A 2ecause it was painful. L *hen the organ of $icky was forced inside your genitals, what did $icky do with his body if anyI A 4is body was moving. L (an you demonstrate to us how his body was movingI A 4e was moving his body like this. (witness moving her body from side to side.' L *hile the body of $icky was moving, did you see his faceI A Jes, sir. L 4ow would you describe the face of $ickyI A 4e was looking. L 4e was looking to (sic' whomI A <e. ))) ))) ))) L *hat was the position of $icky when he inserted his organ inside your genitalsI A Eying down. L 4ow about you, what was your position when $icky inserted is organ inside your genitalsI A @ was sitting on his lap. L 2efore $icky inserted his pennis ( sic' inside your organ, were you wearing pantyI A 4e pulled it down. L And before $icky inserted his pennis ( sic' inside your organ, was $icky wearing pantsI A 8one. L *hat do you mean when you said >8one>I A 4e was naked. L 8ow, can you tell the 4onorable (ourt if the pennis (sic' of $icky penetrated your se) organI A 4is organ penetrated my genitals. L 8ow, while you were sitting on the lap of $icky who was lying down and his organ was inside your private part, you said you shouted because it was painful, after that what happenedI A (ano said, >your grandmother is coming>. L *here was (ano when he told you thatI A 4e was just around. L *hen you heard that your grandmother was coming, what did you doI A @ went home. L (an you recall if that nipa hut had stairsI A Jes, sir. L And your grandmother saw you coming out of the nipa hutI A Jes, sir. L *here were you when your grandmother saw youI A @ was going down when she saw me. L Bpon seeing your grandmother, what did you doI A @ went to her. L .id you tell her anythingI A Jes, sir. L *hat did you tell your grandmotherI A That the organ of $icky penetrated my organ. L And after you told your grandmother that the pennis (sic' of the accused was inserted in your private part, what did your grandmother doI A 3he brought me to the hospital. %= Thus, in its order of 6ebruary 7, %77; on appellant/s application for bail, the court below correctly and aptly observed? >@n the case at bar, ,oldie $uth 6uentes clearly and une+uivocally testified that she felt pain when the accused forced his penis into her genitals. And that pain was her chief complaint to the e)amining physician in the hospital. 4er narration before the court of when and how the accused did it was so clear and convincing as to make the court believe that hers was not a contrived story, as she appeared so young and innocent, as not being capable of contriving stories that could cause her and her family to suffer shame and humiliation. . . . .> %0Ferily, courts usually lend credence to the testimonies of young girls, especially where the established facts indubitably point to their having been se)ually assaulted. %! <oreover, ,oldie $uth positively pointed to appellant as her assailant not only once but twice, firstly, when appellant was brought by the police for +uestioning at the $o)as (ity police station and, secondly, when she was called to testify on the witness stand. %:@n both instances, ,oldie $uth definitely and without hesitation pointed to and identified appellant as her rapist. Appellant takes issue with the failure of the trial court to appreciate the fact that during her cross1e)amination, the victim disclosed that she had earlier been se)ually abused by 3ueta. The girl stated that she also reported this to her grandmother and for which she was likewise taken to the hospital for e)amination. %9

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4owever, as perceptively observed by the 3olicitor ,eneral, and with which we agree, the victim may in all probability have been molested twice by appellant not on different dates but on the same day and occasion. At any rate, the indubitable fact is that all throughout her testimony, she remained as assertive and unflinching about the abominable attack on her chastity and the identity of her attacker as she was when she initially revealed that fact ever so innocently to her grandmother. *hat further enervates the case for appellant is his failure to present strong and credible evidence to rebut the positive testimonies of the prosecution witnesses. @ndeed, his bare denials of culpability and self1serving assertions that he was asleep inside the hut at the time of the incident do not inspire the slightest consideration in view of his clear and positive identification by the victim as the paraphiliac predator. %7Appellant has not even presented to the court any plausible reason why the victim, her grandmother, uncle and aunt would heap upon him such a serious accusation as the rape of ,oldie $uth. The defense of denial, when not supported by clear and convincing evidence, deserves no weight in law. @t cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters, for as between positive and categorical testimony which bears the earmarks of truth, on one hand, and a bare denial, on the other, the former is generally held to prevail. ;6urther, in the absence of evidence to indicate that the prosecution witnesses were moved by improper motives, the presumption is that they were not so moved and their testimony should accordingly be entitled to full credit. % Appellant/s protestations to the effect that the trial court was moved by considerations of bias since the victim was a hapless five1year old girl is at best a flaccid and futile attempt to shore a tottering defense. @n the pretensions of appellant, the trial court >was evidently under emotional e)citement transformed into directional sympathy toward the version of the alleged victim largely all because the one telling the story is young>. Precisely, the trial court was impressed by the candid and forthright declaration of the victim despite her tender years. @ndeed, while her statement that >$icky inserted his bird inside my flower> spoke elo+uently, albeit sadly, of the utter innocence and naivete of ,oldie $uth, it also spelled out volumes of truth to her cries of rape. @t is simply hard to conceive that a young girl would invent such a sordid tale as her violation by appellant unless it was the plain truth. Time and again, and with indisputable applicability to this case, the (ourt has held that when an alleged victim of rape says that she has been violated, she says in effect all that is necessary to show that rape has been inflicted on her and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof. & Appellant makes much of the apparent conflict in the medical findings of the doctors who conducted physical e)aminations on ,oldie $uth. @ndeed, while those of .r. 4elen 2isnar, a private practitioner, and .r. Eourdes Eanaga, a resident physician at the $o)as (ity <emorial 4ospital, indicated that the victim/s hymen was intact, that of .r. $icardo 4. -aboneta, the 82@ <edico1Eegal 5fficer for $egion F@, showed that the girl/s hymen had suffered a laceration through >intra1labial se)ual intercourse with a man on or about the alleged date of commission>. =Appellant/s arguments on this point are clearly specious submissions. The well1entrenched rule is that a medical e)amination is not an indispensable element in a prosecution for rape. 08evertheless, it may be taken into consideration in determining the veracity of the victim/s claim. !@n the case at bar, all the aforestated medical reports submitted by the e)amining physicians were one in declaring that the offended party had suffered a one centimeter laceration in her se)ual organ, thus corroborating and lending truth to the victim/s account that she had been violated. @n fact, .r. -aboneta, on whose objective medical findings and testimony the court below evidently relied upon with good reason, was emphatic in declaring before said lower court that the laceration which he found on the victim/s se)ual organ was definitely caused by the insertion of a male organ into the girl/s vagina at about the time of the alleged rape. :@n any event, it is beyond cavil that the mere penetration of the male organ into the labia %a:ora of the victim/s genitalia consummates the felony. *e, therefore, hold that the trial court did not commit a reversible error in convicting appellant since the constitutional but disputable presumption of innocence in his favor has been clearly and convincingly breached by the superior evidence of the prosecution. @n view, however, of this court/s current policy with regard to the amount of indemnity that may be awarded in rape cases of this nature, that is, rape of a woman who is below twelve years of age, the indemnification to the victim and her family should be increased to P0;,;;;.;;. 96urthermore, the penalty to be imposed on appellant should be reclusion perpetua. A((5$.@8,EJ, the judgment convicting accused1appellant $icky 3ueta of the crime of rape is hereby A66@$<G., with the <5.@6@(AT@583 that said accused1appellant is hereby ordered to pay the victim and her family the amount of P0;,;;;.;; as and by way of indemnification, and that the penalty imposed on him by the trial court is hereby amended to reclusion perpetua. 35 5$.G$G.. G.R. No. L-25427 J(nu(%; 17, 1989 -EO-LE OF THE -HILI--INES, plaintiff1appellee, vs. DIOSCORO -EDROSA, accused1appellant. !)e Solicitor General for plaintiff8appellee. 'itizens Legal Assistance $ffice for accused8appellant. SARMIENTO, J.: The appellant, .ioscoro Pedrosa, was convicted by the trial court OO of the special comple) crime of $ape with 4omicide committed against <aria 2elen Almaden, a nine1 year old girl, and was accordingly sentenced to suffer the e)treme penalty of death. The victim was brutally strangled to death after having been se)ually assaulted and abused. 2efore us on automatic review, the appellant, who was twenty three years old at the time of his conviction, three years after the commission of the crime, prays for ac+uittal, denying his participation in such a barbaric, inhuman, and heartless crime. The evidence for the prosecution shows that in the afternoon of -une 7, %7::, spouses Eeovigildo Almaden and Grlinda Felasco Almaden left their house in 2arangay Tacuranga, Palo, Eeyte, to harvest palay in neighboring 2arangay (apiwaran. 1 They left behind their daughter <aria, their %%1year old son $oberto, their : year old daughter Agnes, and a %&1year1old house guest, .elia 4eColi .1 The children went to bed at about 9?;; o/clock. <aria and .elia shared one bed while Agnes and $oberto slept in another . 3 At about %%?&; p.m., .elia was awakened when someone tugged at her head. As she sat up on the edge of the bed, she heard <aria cry out in pain. 3he also heard the rattling

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sound of empty water gallon containers in the house. 3he was seiCed with fear because she sensed that the hand that touched her head was not <aria/s. 3he groped for <aria but could not find her. Bnable to find a match, she went out of the house to seek help from the neighbors. The first house she went to was that of 3antiago Fillas. *hen Fillas refused to accompany her because his wife would not let him, she proceeded to the neighboring house of :;1year old 6rancisco <as. 4 @n the meantime, $oberto, who slept only three (&' meters away from the bed of .elia and <aria, 2 had also been awakened when <aria cried out in pain. *hen he heard the sound of water containers striking one another, he stood up and went to the other bed but he found it empty. 4e sat down. Then he felt something hit his foot; it was the foot of a man wearing pants but without shoes. The man/s pants had irregular and unravelled edges. $oberto went to the porch and sat down. A man emerged from the room and joined him. $oberto, from apparent fright, shouted, calling for .elia. The man became angry, telling $oberto that he would awaken the neighbors. 5 -ust then 6rancisco <as and .elia arrived at the house of the Almadens with a lamp. They found the appellant sitting at the porch . 7 *ith the light provided by the lamp, $oberto saw that the man sitting on the porch was wearing the unevenly edged trousers of the man who hit his foot; he identified the man as the appellant. 8 6rancisco tried to go up the house but he had to beat a hasty retreat when the appellant shouted at him not to enter. 9 After 6rancisco left, .elia, $oberto, and the appellant went inside and found <aria lying in bed. .ioscoro, the appellant, shook the girl, but she did not move. 3he was dead .10 That night, Agnes, .elia, and $oberto stayed together in one bed while the appellant lay beside <aria. 11 The following morning, at about 7?;; o/clock, the appellant, who appeared restless and disturbed (>nalilisang/', went to the house of 8onilon (hi+uillo, a &71year old tuba gatherer of the same barrio, and asked him for Gndrin, a poisonous insecticide, but 8onilon said he had none. The appellant left thereafter. 11 Eater that morning, the appellant accompanied $oberto to 2o. (apiwaran to inform Einda of her daughter/s death.13 They found Einda doing laundry work near a well in the yard. <aria/s father, Eeovigildo, who was working in the ricefield, heard the news and joined them. 4e heard the appellant tell his (Eeovigildo/s' wife? ><ama Einda, <aria 2elen is already dead. 3he suffered from stomach ache and pains.> The bereft Almadens went home. 14 Bpon reaching home, Eeovigildo saw his dead child, <aria, lying on a bloodied blanket. *hen he e)amined her and found that the blood came from her vagina, he suspected foul play. 4e looked for a doctor, but finding none at the <aternity 4ouse, he reported the matter to the police. Patrolman $ogelio <ontejo, who was assigned to investigate the case, accompanied Eeovigildo back to his house. The two looked for the appellant but he was nowhere to be found. According to Einda, the appellant ran when Eeovigildo went out to look for a doctor to e)amine their child. They found the appellant later in his house. *hen Pat. <ontejo asked him if he was .ioscoro, the appellant/s reply was, >@ did not know what @ was doing./ The appellant was then brought to Eeovigildo/s house, to the room where the dead girl still lay. There, he was told by Pat. <ontejo, >Eook at what you have done.> The appellant did not say anything. 4e did not deny the imputation of the police officer. 12 <aria/s body was brought to the <aternity 4ouse where .r. 3antiago 3udario, -r. conducted an autopsy. 4is findings, as contained in his Post1<ortem G)amination $eport, are the following? 6@8.@8,3? %. Abrasion1confluent %; cm. ) 9.0 chest, overlying median portion of both right and left clavicles fown to sternum. . (ontusion 11! cm. ) ! cm. from sub1mandibular to front of neck. &. Abrasion1linear 0 cm. P sub1mandibular. =. Abrasion =.0 cm. ) .0 cm. confluent a)illa right. 0. (ontusion1reddish 9.0 cm. ) %: cm. from medial portion of right arm, 0 cm. distal to right elbow to a)illary area and to right scapular area. !. (ontusion1reddish whole area of back. :. (ontusion1reddish from upper border of both sides of public (sic' at back down heel of both right and left lower e)tremity. 9. @nternal G)amination? %. 4ymen1completely destroyed. . Faginal canal admits fingers with ease. &. Faginal wall lacerated at 7?;; o/clock = cm. ) & cm. ) ;.0 cm. (AB3G 56 .GAT4? Asphy)ia due to <anual 3trangulation. 15 @n his defense, appellant .ioscoro Pedrosa presented a different version of the tragic incident which was corroborated by the testimony of his elderly mother. 4is story follows? 5n -une 7, %7::, at about %%?;; in the evening, he was in his house sleeping. 4e was awakened by his mother, to heat her drinking herb ( dolao )a soled=. After he handed the drink to his mother, he heard someone calling for help; the voice came from the direction of the house of Eeovigildo Almaden. @t said, >4elp, help, neighbors, <ano (oroy, you come to us because here is <aria 2elen Almaden, we do not know what is happening to her.> 4e heard the voice three times. 6rom his house to the Almadens is a distance of about %;; meters or less. 4e asked his mother if she heard the cries for help, and the latter told him to go and verify. 3o he went down with a torch and walked over to the Almadens/ house. Bpon arriving there, he saw 6rancisco (Pangcoy' <as sitting on the porch. 4e asked 6rancisco what had happened; and the latter answered, ><aria is already dead.> Bpon hearing that, .ioscoro went up the house. 4e saw <aria 2elen lying in bed. 4e shook her but she (2elen' did not move. 4e asked .elia 4eColi what happened to <aria 2elen, but .elia answered that she did not know, that she only heard her say >agui>. 4e (appellant' slept in the house of the Almadens until the following morning when he and $oberto Almaden went to (apiwaran to inform the parents of <aria 2elen about her death. They found Grlinda Felasco, mother of <aria 2elen washing clothes. 4e told her (Grlinda' that her daughter, <aria 2elen, was already dead. *hen her husband, Eeovigildo Almaden, arrived, Grlinda Felasco told him that their child <aria, was already dead. Eeovigildo became enraged, but his wife was able to pacify him. They all proceeded back to Tacuranga. Bpon arriving at their house, <rs. Almaden re+uested appellant .ioscoro to fetch water. After fetching the water he re+uested permission to go home. Bpon arriving at his house, she looked for his mother but she was not there and, as he was hungry, he went to her aunt/s place and found his mother there. *hile they were eating, the police arrived and told .ioscoro that he was wanted at the municipal building. 4e

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went with the policemen and he was immediately placed inside the jail. 4e asked why he was being sent to jail and the policemen answered that someone had a score to settle with him, but no one came to see him in jail e)cept his mother. 17 4e denied having touched the foot of $oberto Almaden, and said that he was wearing short pants, not trousers. 4e denied having raped and killed <aria 2elen. 4e believed the reason why the Almadens filed the case against him was because of a dispute over a piece of property which he and his mother and the Almadens had inherited from their grandmother and which was subse+uently sold by Grlinda Felasco Almaden (victim/s mother and first cousin of the appellant'. Another reason was that he stopped gathering and delivering tuba to the Almadens. 18 6or us to consider is the following assignments of errors interposed by the appellant in his 2rief. @ T4G T$@AE (5B$T G$$G. @8 45E.@8, T4AT T4G$G @3 3B66@(@G8T (@$(B<3TA8T@AE GF@.G8(G T5 (58F@(T T4G A((B3G. 56 T4G 566G83G (4A$,G.. @@ T4G T$@AE (5B$T G$$G. @8 85T ,@F@8, ($G.G8(G T5 T4G TG3T@<58J 56 A((B3G. A8. 4@3 *@T8G33G3. According to the appellant/s 2rief, the prosecution did not present any direct evidence to prove that the appellant was without a doubt the guilty party; and that not one of the witnesses for the prosecution actually saw the appellant rape and kill <aria 2elen. The prosecution merely presented circumstantial evidence to establish certain facts and circumstances upon which may be drawn the inference that it was the accused who committed the offense. The (ourt does not, however, rule out the overpowering force of circumstantial evidence to establish the guilt of the accused. 3ec. 0 of $ule %&&, $ules of (ourt, provides that >(ircumstantial evidence is sufficient for conviction if? (a' There is more than one circumstance; (b' The facts from which the inferences are derived are proven; and (c' The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. @n determining the sufficiency of circumstantial evidence to support a conviction, each case is to be determined on its own peculiar circumstances. All the facts and circumstances are to be considered together as a whole. *hen so considered, they may be sufficient to support a conviction, although one or more of the facts taken separately would not be sufficient for this purpose. 19 After a thorough review of the records, we find no cogent reason to reverse the findings and conclusions of the trial court, the same being in accord with the evidence and the law. The trial court, in its decision, made a lengthly list of established facts and circumstances which, taken collectively, led to the conviction of the appellant, to wit? (a' That the accused, being a first cousin of the mother of the victim, had free access to the house of the victim. As a matter of fact, the accused, in his testimony, admitted that for eleven (%%' months prior to and including 8ovember, %7:!, he actually lived in the house of the victim. 3uch free access, and the relatively long period of time that the accused lived in the house of the victim, must have given him sufficient knowledge as to the lay1out of the house, together with the various means as to how one may effect entrance to, or e)it, therefrom. (b' The testimony of the accused to the effect that on -une 7, %7::, he was living in his own house which was only about 9; meters away from the house of Eeovigildo Almaden. 3uch apparent pro)imity in distance could have easily been negotiated by the accused. (c' The testimony of Grlinda Felasco Almaden, the mother of the victim and the first cousin of the accused, to the effect that even prior to -une 7, %7:: she had seen the accused hold the hair of her daughter <aria 2elen, and that on -une 7, %7::, before she left her house for 2arrio (apiwaran, she saw <aria 2elen crying and when she asked her why she was crying, her daughter replied that whenever she is alone the accused would kiss her and hold her hair; that she confronted the accused and told him not to do such acts as <aria 2elen was losing respect for him and would call him (oroy instead of Tata. This allegation of Grlinda Felasco Almaden, directed as it is against her own flesh and blood, cannot but be given the imprimatur of truth by this (ourt. This allegation establishes the fact that the accused, on -une 7, %7::, and even prior thereto, had a particular affection for <aria 2elen, an affection which ended in tragedy. 6urther, and thus giving weight to the allegation of Grlinda Felasco Almaden, the accused, while under (ross1e)amination, admitted that he saw <aria 2elen and her mother during the daytime on -une 7, %7::. (d' The testimony of .elia 4eColi, in answer to +uestions propounded by the (ourt, to the effect that on -une 7, %7::, from ?;; o/clock to 0?;; o/clock in the afternoon, the accused and one Pedro Gscobido were drinking tuba in the house of Eeovigildo Almaden, and that when Eeovigildo Almaden left for 2arrio (apiwaran, the accused and Pedro Gscobido also left the house of Eeovigildo Almaden. This allegation establishes the fact that the accused knew that the spouses Eeovigildo Almaden and Grlinda Felasco would be in 2arrio (apiwaran in the evening of -une 7, %7::, and that only .elia 4eColi and the three children would be left in the house of Eeovigildo Almaden. (e' The testimony of .elia 4eColi and $oberto Almaden to the effect that when they awakened at about %%?;; o/clock in the evening of -une 7, %7::, they heard <aria 2elen cry out in pain. This allegation cannot but lead to the logical inference that <aria 2elen was then under assault. (f' The testimony of .elia 4eColi to the effect that she woke up because her head was touched, and the testimony of $oberto Almaden to the effect that when he was sitting on the edge of the bed where .elia 4eColi and <aria 2elen had slept, but who were no longer there, his foot was hit by the foot of a person with no shoes but was wearing pants with irregular, unravelled edges. These allegations, taken in conjunction with the further testimony of $oberto Almaden to the effect that when he was already sitting on the porch, to where he had gone to (sic' after his foot was hit, the person inside the room also went to the porch and whom he recogniCed to be the accused definitely established the fact

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that the accused had been inside the room where <aria 2elen went to sleep and where she was later assaulted. (g' The act of the accused in getting angry at $oberto Almaden, when they were already both at the porch, for shouting and a wakening the neighbors, and the act of the accused in preventing 6rancisco <as in a harsh manner, from going up the house, cannot but lead this (ourt to conclude that the accused wanted to prevent discovery of the fact that <aria 2elen had been brutally and se)ually assaulted. @t may well be that the accused, at the time he committed the acts referred to, did not know that <aria 2elen was already dead and could no longer speak. (h' The testimony of the accused to the effect that the houses of 6rancisco <as (<ang Pangcoy' and 3antiago Fillas are very near the house of Eeovigildo Almaden. This allegation lends and gives credence to the testimony of .elia 4eColi to the effect that when she left the house of Eeovigildo Almaden in the evening of -une 7, %7:: seeking help, she went to the houses of 3antiago Fillas and 6rancisco <as who were their nearest neighbors. (i' The act of the accused, after discovering that <aria 2elen was already dead, in lying down beside the dead body of <aria 2elen. To the mind of the (ourt, such a strange and unusual act denotes not only affection, it is likewise, an act of repentance. This (ourt cannot think of any other logical inference for the simple reason that people do not usually lie down beside a dead body e)cept for a compelling cause induced by the person/s frame of mind. j' The act of the accused in running towards his house after Eeovigildo Almaden left to go to the municipal building. To the mind of the (ourt, this act of the accused is akin to flight indicative of guilt. The leaving of Eeovigildo Almaden to report the incident to the proper authorities must have engendered in the mind of the accused the feeling that he would soon be made to account for the death of <aria 2elen, thus causing him to run away. The subse+uent acts of the accused +uite clearly indicate that such was his frame of mind when he fled from the premises of Eeovigildo Almaden. k' The act of the accused, after running from the house of Eeovigildo Almaden, in proceeding to the house of 8onilon (hi+uillo and re+uesting for endrin a poison commonly used in the barrios, cannot but lead this (ourt to believe that the accused, with the knowledge that the authorities would soon appear, had decided to kill himself. 3uch an act is indicative of a feeling of guilt and of great remorse, coupled with a feeling of fear and apprehension that he would soon be made to answer for the death of <aria 2elen, and specially more so when, at the time the re+uest was made, the accused appeared /restless and disturbed. This (ourt believes that this is the only logical inference that can satisfactorily e)plain the act of the accused in re+uesting for poison. The means of livelihood of the accused offers no justification for such an unusual re+uest. The antecedent circumstances, collectively taken, does so (sic'. (l' The reply of the accused, when he was asked by Patrolman $ogelio <ontejo whether he was .ioscoro Pedrosa, which reply was made not very long after he had failed to secure poison, such a reply being. @ did not know what @ was doing. This utterance is an unusual utterance. @t was not the proper answer to a simple +uestion. @t was made spontaneously and instinctively, with the knowledge that his fear and apprehension had been transformed into reality he was already being made to answer and to account for the death of <aria 2elen. This utterance is an admission of guilt. @t is part of the res gestae. (m' The silence of the accused when he was made to look at the dead body of <aria 2elen and told by the policemen to /look at what he had done/. The only logical inference that could possibly be made of such a silence is that it is a confirmation of a previous admission of guilt. 10 *e agree with the trial court that the aforementioned established facts and circumstances ineluctably lead to the logical conclusion that the appellant is guilty of the crime charged beyond reasonable doubt. 3uch circumstances, duly proven with certainty by direct evidence, when taken collectively, unerringly point to the appellant as the person who raped and killed <aria 2elen. Anent the second assigned error, we generally desist from disturbing the conclusions of the trial court on the credibility of witnesses. The findings of fact of the trial judge must be accorded great weight by an appellate tribunal for the latter can only read in cold print the testimony of the witnesses which commonly is translated from the local dialect into Gnglish. @n the process of converting into written form the statements of living human beings, not only fine nuances but a world of meaning apparent to the judge present, watching and listening, may escape the reader of the written, translated words. 11 The trial court stated in its decision that the witnesses for the prosecution testified in a frank and straightforward manner and showed no unwillingness nor hesitation in answering +uestions; that they testified with apparent sincerity and in a manner which indicated sufficient intelligence; that they testified to facts of which they had personal knowledge, and had the means and capacity of knowing and the opportunities of observing; and that there was no doubt, considering the circumstances then prevailing, that their attention and interest were focused upon the facts to which they respectively testified. The star witnesses for the prosecution in this case are children of tender years. And from the mouths of the children we get the truth. An intelligent boy is undoubtedly the best observer to be found. The world begins to take him by storm with its thousand matters of interest; what the school and his daily life furnish cannot satisfy his overflowing and generous heart. 4e lays hold of everything new, striking, strange; all his senses are on the stretch to assimilate it as far as possible. 8o one notices a change in the house, no one discovers the bird/s nest, no one observes anything out of the way in the fields; but nothing of that sort escapes the boy; everything which emerges above the monotonous level of daily life gives him a good opportunity for e)ercising his wits, for e)tending his knowledge, and for attracting the attention of his elders, to whom he communicates his discoveries. The spirit of the youth not having as yet been led astray by the necessities of life, its storms and

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battles, its factions and +uarrels, he can freely abandon himself to everything which appears out of the way; his life has not yet been disturbed by education, though he often observes more clearly and accurately than any adult. 2esides, he has already got some principles; lying is distasteful to him, because he thinks it mean; he is no stranger to the sentiment of self1respect, and he never loses an opportunity of being right in what he affirms. Thus he is, as a rule, but little influenced by the suggestions of others, and he describes objects and occurrences as he has really seen them. *e say again that an intelligent boy is as a rule the best witness in the world. 11 Truly, children of sound mind are likely to be more observant of incidents which take place within their view than older persons, so their testimony is likely to be more correct and truthful than that of older persons, and where once established that they have fully understood the nature and character of an oath, as in this case before us, their testimony should be given full faith and credence. 13 <oreover, Grlinda Felasco Almaden and $oberto Almaden are very close relatives of the appellant. *e find no reason for them to falsely testify against a close relative (the appellant' regarding such a heinous crime. 6urthermore, no evidence was adduced as to why 6rancisco <as a neighbor of the appellant and already :; years old when he testified, should impute false statements to the appellant. 8either was there any impeaching evidence offered against the testimony of prosecution witness 8onilon (hi+uillo. The crime charged against the appellant is $ape with 4omicide. The $evised Penal (ode, as amended, provides that >"w#hen by reason or on the occassion of the rape, a homicide is committed, the penalty shall be death. 14 The gravity of the crime ordinarily would compel us to impose that penalty but which we can not do due to the constitutional prohibition. *4G$G65$G, premises considered, the conviction rendered by the trial court is hereby A66@$<G.. 4owever, due to the prohibition on the imposition of the death penalty under 3ection %7, Article @@@ of the %79: (onstitution, the appellant, .ioscoro Pedrosa, hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the late <aria 2elen Almaden the amount of Thirty Thousand Pesos (P&;,;;;.;;'. (ost against the appellant. 35 5$.G$G.. fourth degree burns and died of hypostatic pneumonia and infected fourth degree burns on &; 8ovember %797. 4er husband, accused1appellant $olando <endoCa, was charged with the crime of parricide in an information filed on 7 -une %77; with 2ranch 9 of the $egional Trial (ourt ($T(' of <alolos, 2ulacan. The accusatory portion thereof read? That on or about the nd day of 8ovember, %797, in the municipality of 3ta. <aria, province of 2ulacan, Philippines, and within the jurisdiction of this 4onorable (ourt, the said accused $olando <endoCa, armed with a kerosene gas "sic# and with intent to kill his wife <aria ,ina <endoCa, 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 <aria ,ina <endoCa which directly caused her death. (ontrary to law.% Trial on the merits was had after accused1appellant entered a plea of not guilty at his arraignment. The prosecution presented as its witnesses Paul <ichael <endoCa, a five1year old child of the victim and the accused1appellant; -hun Avila, Teofisto Avila, and $odora Avila, the victim/s brother, father, and sister, respectively; and .r. 8ieto <. 3alvador, the <edico1 Eegal 5fficer of the 8ational 2ureau of @nvestigation (8$@'. 5n its part, the defense presented the accused1appellant himself and Grlinda Porciuncula, a childhood friend. The testimonies of the witnesses for the prosecution established the following facts? The accused1appellant and the victim were married on &; -anuary %790 at the 3to. (risto Parish (hurch in 2ocaue, 2ulacan and lived in 2alasing, 3ta. <aria, 2ulacan. & Their union bore three children? Paul <ichael, the eldest, who was born on : -une %790, = -ohn1 -ohn, and Paula, the youngest.0 @n the evening of 8ovember %797, the accused1appellant and his wife were in their residence with their children. At around =?;; a.m. the ne)t morning, relatives of the accused1appellant went to the house of -hun Avila (the victim/s brother' in *awa, 2alagtas, 2ulacan, and informed him that his sister ,ina >got burned.> Two hours later, -hun and his father Teofisto Avila went to the house of ,ina and her husband, only to discover that the latter were not there. They found the things inside the house in disarray; saw a (oke bottle which smelled of kerosene, hair strands and burned human flesh in the comfort room; and the burned clothes of ,ina outside the house. They also noticed that the branches and leaves of the atienCa tree in front of the house were likewise somewhat burned. They proceeded to a neighbor/s house where Paul <ichael, -ohn1-ohn, and Paula were temporarily sheltered. Paul <ichael was sitting in a corner and somewhat > tulala,> while Paula was sleeping. -hun then brought the children to his house.! As Grlinda Porciuncula informed the Avila family that ,ina had been brought to the <anila 3anitarium 4ospital in Pasay (ity, Teofisto, -hun, and $odora proceeded there.: According to -hun, however, they were not able to talk to ,ina that day as she was inside the operating room. @t was only after two days that -hun was able to see ,ina, 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.> 9 -hun likewise testified that ,ina was unable to talk to her sister $odora nor her father Teofisto.7 ,ina died on &; 8ovember %797. .r. 8oel <inay, <edico1Eegal 5fficer of the 82@, conducted the autopsy and determined the cause of death to be >hypostatic pneumonia; infected =th degree burns>; %; and in his Autopsy $eport, %% he entered the following post1 mortem findings?

G.R. No. 113791 Fe4%u(%; 11, 1995 -EO-LE OF THE -HILI--INES, plaintiff1appellee, vs. ROLANDO MENDO A, accused1appellant. DECISION DA,IDE, JR., J.0 <aria ,ina Avila <endoCa, a mother of three young children, was put to fire in her home in 2alasing, 3ta. <aria, 2ulacan, on 8ovember %797. 3he suffered e)tensive second to

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2urns, e)tensive, second to fourth degree, with skin grafts, e)cepting 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 aid foot, left side. Eungs, with foci of consolidations at the bases; transections shows ( sic' yellowish mucoid material in the lower part of the tracheo1bronchial tree. 2rain and other visceral organs, marked congestion. 3tomach contains small amount of yellowish fluid material. This report also indicated that the cause of death was >4JP53TAT@( P8GB<58@A; @86G(TG. 65B$T4 .G,$GG 2B$83.> .r. 8ieto <. 3alvador testified on the certification and autopsy report, in view of .r. <inay/s resignation from the 82@ sometime after he e)amined the cadaver of the victim. % @n the evening of &; 8ovember %797, -hun told Paul <ichael that his mother ,ina had died. Paul <ichael then narrated to him what actually happened to his mother that fateful evening. 2ecause of these revelations and the findings of the doctor, -hun reported the matter to the police authorities in 3ta. <aria, 2ulacan. %& -hun Avila had gone five times to the residence of ,ina and the accused1appellant from & 8ovember %797 to &; 8ovember %797, yet he did not see the accused1appellant; in fact, the latter never showed up during the wake nor burial of ,ina. @t was only when the accused1appellant was arrested in the house of a woman in Eongos, 2alagtas, 2ulacan, %= that -hun saw him for the first time after the incident. The medical e)penses incurred for the hospitaliCation of ,ina amounted to P99,:0;.;;, of which, her parents were able to pay only P%9,;;;.;;. 6or the balance, Teofisto had to sign a promissory note to be paid on installments.%0 As to how ,ina was burned, only five1year old Paul <ichael could testify thereon. @n his testimony during the presentation of the evidence in chief on %9 6ebruary %77%, Paul <ichael declared that one evening inside their house, his father bo)ed his mother on her mouth and then tied her up. 4owever, the witness did not answer succeeding +uestions which sought to elicit what happened thereafter, although he kept on looking at his father throughout this period. 4e later revealed that he saw matches and kerosene in their house. 4e likewise declared that his mother was now in heaven because she was dead. %! .uring his rebuttal testimony on % 5ctober %77 , Paul <ichael categorically declared that it was his father who >burned> his mother. The accused1appellant, who was drunk at that time, first tied the victim/s hands behind her back, then >poured kerosene> on the front of her body and set her aflame. Paul <ichael further declared that his father tied1up his mother because they +uarreled when his mother wanted him (Paul <ichael' to go with the accused1appellant to the street corner, but his father refused. 6inally, many times before, his parents +uarreled because his father was always drunk. %: Pertinent portions of Paul <ichael/s testimony on rebuttal are as follows? L *hen your father $olando <endoCa testified on direct e)amination, he stated that when he returned to your house in 2alasing, 3ta. <aria, 2ulacan on 8ovember , %797, he saw your mother was jumping up and down while her dress was already burning. *hat can you say about thatI A @t is not true, 3ir. L *hy do you say that it is not trueI A 2ecause it was he who burned my mother, 3ir. (5B$T? 4ow did he burn your motherI A At first he tied up my mother, then he poured kerosene " sic# upon my mother, 3ir. L *hat was tied, the hands or the feet of your motherI A The hands, Jour 4onor. L 4ow was it tiedI A At the back, Jour 4onor. L .o you know the reason why she was tied upI A Jes Jour 4onor. They were +uarreling because my mother wanted me to go with my father to "sic# street corner. L Then what happened ne)tI A 2ecause of that they +uarreled already. L *hat you mean is that your mother was objecting you to go "sic# with your fatherI A <y mother wanted me to go with my father but my father refused me " sic# to go with him, Jour 4onor. L *hat would you do at the street corner with your fatherI A 3he just wanted me to accompany my father. L And because of that +uarrel, your father tied the hands of your motherI A Jes, Jour 4onor. L Then he put kerosene "sic# at the front body "sic# of your motherI A Jes, Jour 4onor. L And after putting kerosene "sic#, what did he do ne)tI A 4e lighted it, Jour 4onor. L *as that the first time that you"r# mother and your father +uarreledI A <any times, Jour 4onor. L *hat was the cause of their +uarrelI A 2ecause my father was always drunk, Jour 4onor. L At the time when your mother was tied and then kerosene " sic# was poured upon her dress, was your father drunkI A Jes, Jour 4onor. L Jour father always went out and when he returned he was always drunkI A Jes, Jour 4onor. %9 The defense, of course, had a different story to tell. Grlinda Porciuncula, who grew up with the accused1appellant and was like a sister to him, testified that at around 9?&; p.m. of 8ovember %797, $olando <endoCa came to her house asking for help because his wife burned herself. Together with the accused1 appellant, she borrowed the owner1type jeep of her neighbor so they could bring his wife to the hospital. They proceeded to 3t. <ary/s 4ospital, but the attending physician advised them to bring the victim to the Philippine ,eneral 4ospital (P,4'. At the hospital, the staff could not admit the victim due to the unavailability of rooms. 5n the way to the P,4, 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 <anila 3anitarium 4ospital where the victim was immediately given first aid and transferred to >the isolated $oom 8o. & 9.> The accused1appellant re+uested the witness to buy medicine and inform the relatives of the victim of what had happened, which she acceded to. 3he was able to visit the victim three more times before the victim died on &;

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8ovember %797, and on two of these occasions, she saw the accused1appellant at the hospital. %7 Accused1appellant $olando <endoCa testified that on 8ovember %797, between 0?;; to !?;; p.m., three persons who wanted to befriend him visited him in his house. These three persons, of whom the accused1appellant could only name one, brought a bottle of li+uor and had a drinking session with him, which lasted about an hour or two. As these three persons were leaving, the accused1appellant 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. 4e saw a pail of water which he then used to douse out the flames. At this time, his wife cursed him and said? > Putang8ina %o sa-ang8sa-a na a2o sa bu)a5 na ito,> and >Hu-ag %o a2ong pa2iala%an.> ; The accused1appellant 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. 3everal 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 3t. <ary/s 4ospital, but since the hospital did not have a burns specialist, they were advised to bring the victim to a hospital in <anila. The driver of the jeep, however, refused to bring them to <anila as he had neither a driver/s license nor gas. The accused1 appellant was instead brought to 2ocaue, 2ulacan, and there he was able to procure another vehicle and borrow some money. Gventually, his wife was brought to the <anila 3anitarium 4ospital after the P,4 refused to admit the victim. 4e stayed with his wife from the time she was admitted up to the time she died, and even bought the needed medicines. 4e did not attend her wake nor burial because of the threats his brother1in1law made. *hen asked if he knew why his wife burned herself, he surmised that she was >aburido> % from all their financial difficulties. @n giving full credence to the testimony of eyewitness Paul <ichael, & the trial court observed that? As provided by 3ection ;, $ule %&; of the $ules of (ourt, a person who can perceive, and perceiving, can make known his perception to others, may be a witness. A four1year old boy can already speak clearly, can understand things happening around him, and ready to study, to read and to write. 6or families who can afford, a four1year old child is already sent to the nursery to begin hisMher studies. An intelligent boy is undoubtedly the best observer to be found. 4e is little influenced by the suggestion of others and describes objects and occurrences as he has really seen them (Pp. vs. 2ustos, =0 Phil. 7'. Paul <ichael was five months over four years when the incident happened. 4e 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'. 2ecause he knew the implication of what had happened to his mother. 4e knew that the burning of his mother might cause her death. @f, indeed, he could not yet perceive things, such happening would pass unnoticed and without impact on him. Bnless a child/s testimony is punctured with serious inconsistencies 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. (idro, et al., 0! 5.,. &0=:'. The first time Paul <ichael was presented as "a# witness, the only thing substantial he testified on was that his father bo)ed his mother in the mouth and tied her. 5n further +uestions, he refused to answer anymore. The (ourt noticed the reason for such adamant attitude of the witness. 4is 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 (ourt 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 e)tensively without hesitation. = The trial court rejected the version of the accused1appellant, stating that? Accused $olando <endoCa made the defense that his wife <aria ,ina Avila1 <endoCa burned herself. 4e, however, lost courage when ,ina died. After ,ina/s death, he left the hospital and never returned. 4e failed to visit her during the wake and even during the burial. 4e was forced to come out only when arrested in a house of a woman in Eongos, 2alagtas, 2ulacan. Against such behaviour of his may be applied an interpretation of flight in criminal law 1 that flight of the accused is an evidence of guilt and a guilty conscience (B.3. vs. Alegado, 0 Phil. &%;'. Accused gave as a reason for his failure to attend the wake and burial of his wife the threat of his brother1in1law to kill him if anything would happen to ,ina. @t is said that the wicked flee even when no man pursueth, whereas the righteous are as brave as a lion (B.3. vs. 3arikala, &: Phil. =9!'. @f, indeed, accused was not guilty and nothing bothered his conscience, he would be brave as a lion to meet his brother1in1law and face any and all conse+uences. @n 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. 6urther, the burning in the dress and body of ,ina gives support to the claim of the prosecution that she was burned. Paul <ichael testified that the hands of his mother were tied at the back. -hun Avila testified that the branches and leaves of the atienCa tree were burned. They tend to show that ,ina was tied at the back, placed near the trunk of a tree and burned. 2eing 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. @n this case, however, only the front portion of ,ina/s dress and body were burned as well as the branches and leaves of the atienCa tree. That indicates that while the victim was burning, she remained stationary in the place where she was tied. 0 Accordingly, the trial court convicted the accused1appellant as follows? *4G$G65$G, the (ourt finds the accused $olando <endoCa guilty beyond reasonable doubt of the crime of Parricide, defined and penaliCed under Article =! of the $evised Penal (ode and hereby sentences him to a penalty of reclusion perpetua, and to indemnify the parents of the victim <aria ,ina Avila1<endoCa the sum of P99,;;;.;; representing the amount of hospital bills of the victim. 8o cost. 35 5$.G$G.. ! @n this appeal, the accused1appellant prays for a reversal of the lower court/s decision, maintaining that if his evidence is considered in its entirety, it would show his innocence. The accused1appellant underscores the fact that?

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"A#fter 8ovember , %797, the date of the incident, the child Paul <ichael <endoCa had been and remains under the custody and care of the parents and brothers and sisters of the late <aria ,ina <endoCa, 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. : 4e thus asks this (ourt to disregard the testimony of Paul <ichael for being >open to serious +uestion and consideration> as it was >often attended "by# unintelligible answers and punctuated by contrary answers to previously given answers>; >"b#esides the child/s tender age, he suffer"s# from "a# lack or inade+uacy of sense of duty to tell the truth.> 4e further claims that per the findings of the <edico1Eegal 5fficer, the victim did not die of burns but of hypostatic pneumonia. 9 After a thorough e)amination of the records and scrutiny of the evidence, we find no merit in this appeal. The accused1appellant/s seven1page 2rief miserably fails to present convincing grounds why the challenged decision should be overturned. The lower court convicted the accused1appellant primarily on the basis of the testimony of eyewitness Paul <ichael <endoCa, and it is obvious that the pith of the present appeal is the child/s competency to testify and the credibility of his testimony. 3ection ;, $ule %&; of the $ules of (ourt provides? G)cept as provided in the ne)t succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses . . . . *ith respect to the dis+ualification of children to be witnesses, 3ection %(b' of the abovementioned rule reads? The following persons cannot be witnesses? ))) ))) ))) (b' (hildren whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are e)amined and of relating them truthfully. @t 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 e)amined. @n the %7%& decision in 7nited States vs. uncad, 7 this (ourt stated? Professor *igmore, after referring to the common1law precedents upon this point, says? >2ut this much may be taken as settled, that no rule defines an5 particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.> (*igmore on Gvidence, vol. @, p. !&9' &; *hile on the same subject, Bnderhill declares? Q 0:. ')ildren on t)e -itness stand. 1 Bnder the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. 4e is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. 4e 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. @f the witness fulfills these re+uirements, it is immaterial as bearing upon his competency that he is unable to define the oath or to define testimony. @n the wise discretion of the court, a child four, five, si) and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. @t may not be said that there is any particular age at which as a matter of law all children are competent or incompetent . . . . &% The re+uirements then of a child/s competency as a witness are the? (a' capacity 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 re+uirements, it is settled that the trial court is called upon to make such determination.&& As held in 7nited States vs. uncad, &= +uoting from 6)eeler vs. 7nited States, &0 and reiterated in People vs.Raptus &! and People vs. Libungan? &: The decision of this +uestion 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 e)amination 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. &9 The trial court has adjudged Paul <ichael competent to testify. *e agree. A close and careful e)amination of the testimony of Paul <ichael 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 +uestions asked of him by the trial judge, as well as recalling events and relating them to such recollections. The initial hesitancy of Paul <ichael to name his father as the author of the crime was sufficiently e)plained by the trial court as follows? The first time Paul <ichael was presented as "a# witness, the only thing substantial he testified on was that his father bo)ed his mother in the mouth and tied her. 5n further +uestions, he refused to answer anymore. The (ourt noticed the reason for such adamant attitude of the witness. 4is 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 (ourt 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 e)tensively without hesitation. &7 *e defer to such observation and e)planation. @ndeed, 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 <ichael was on the witness stand, =; thusly, we find no reason to disregard the assessment made by the trial court. The accused1appellant/s contention that Paul <ichael/s testimony could have been influenced by the relatives of ,ina, who were full of >unwavering anger, hatred, hostility, resentment, revenge,> more so since the child had been in their custody since after 8ovember %797, is unacceptable. The charge is nothing but unmitigated speculation as not a shred of evidence was offered in support thereof. 8ot even the rigorous cross1 e)amination Paul <ichael underwent dented the probative force of his testimony; on the

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contrary, it merely added strength thereto as it elicited nothing less than the boy/s adherence to truth. *e realiCe how e)tremely painful it was for Paul <ichael to reveal that it was his father who burned his mother. 4e knew that such a revelation could send his father to jail and thus brand him a son of a killer or a convict. @f he did, nevertheless, it was to e)pose the truth and give justice to his mother who met an e)cruciatingly painful death. Ferily, >from the mouths of children we get the truth.> =% 8either are we persuaded by the accused1appellant/s claim that the cause of death of his wife was )5postatic pneu%onia and not due to the burns she sustained. 3uch a claim borders on misrepresentation, for as earlier shown, both the Autopsy $eport (G)hibit >41 %>' and the (ertificate of Post8Morte% G)amination (G)hibit >41%>' indicated the cause of death to be >)5postatic pneu%onia; infected fourt) degree burns.> <oreover, as testified to by .r. 8ieto 3alvador, the pro)imate cause of the hypostatic pneumonia was ,ina/s recumbent position due to the fourth degree burns she suffered. Thus? (5B$T? *hat could have caused hypostatic pneumoniaI 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. *hat you mean "is# it "was# because of the fourth degree burns the victim sustained in front that/s why she was always lying down and unable to change her positionI A Jes, Jour 4onor. L .o you mean that hypostatic pneumonia can be ac+uire"d# by merely always lying downI A Jes, Jour 4onor. L @s that the only causeI A That/s 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 can/t flow down. ))) ))) ))) L *ould you say that hypostatic pneumonia may also be caused by fourth degree burnsI A Jes, 3ir. = @t goes without saying that an accused is liable for all the conse+uences of his felonious act. =& 6inally, the accused1appellant was never seen after the death of his wife 1 neither during her wake nor at her burial. 4is whereabouts were unknown. 4e 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. @n short, he was even afraid to see his children; he could not trust them. @n 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. @t has been said that the wicked man flees though no man pursueth, but the righteous are as bold as a lion. == The e)planation 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 accused1appellant the mitigating circumstance of into)ication. The accused1appellant committed the felony in +uestion in a state of into)ication and there was no sufficient proof that it was habitual nor subse+uent to the plan to commit the felony. =0 @t failed, however, to award civil indemnity to the children of the victim. (onformably with current case law, they should be awarded the sum of P0;,;;;.;;. *4G$G65$G, the instant appeal is hereby .@3<@33G.. 2eing in accordance with the facts and the law, the challenged decision of 2ranch 9 of the $egional Trial (ourt of 2ulacan in (riminal (ase 8o. %=%=1<17; is, A66@$<G., subject to the above modification on the additional award of P0;,;;;.;;, as civil indemnity, to the heirs of the victim, ,ina Avila <endoCa. (osts against the accused1appellant. 35 5$.G$G..

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himself or protect himself from abuse, neglect, cruelty, e)ploitation, or discrimination because of a physical or mental disability or condition. (b' >(hild abuse> means physical, psychological, or se)ual abuse, and criminal neglect as defined in $epublic Act 8o. :!%; and other related laws. (c' >6acilitator> means a person appointed by the court to pose +uestions to a child. (d' >$ecord regarding a child> or >record> means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialiCation, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e' A >guardian ad litem> is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f' A >support person> is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g' >2est interests of the child> means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. @t also means the least detrimental available alternative for safeguarding the growth and development of the child. (h' >.evelopmental level> refers to the specific growth phase in which most individuals are e)pected to behave and function in relation to the advancement of their physical, socio1emotional, cognitive, and moral abilities. (i' >@n1depth investigative interview> or >disclosure interview> is an in+uiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. Se)'$on 2. Guardian ad litem. 1 (a' The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. @n making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if +ualified. The guardian ad litem may be a member of the Philippine 2ar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b' The guardian ad litem? (%' 3hall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; ( ' 3hall make recommendations to the court concerning the welfare of the child; (&' 3hall have access to all reports, evaluations, and records necessary to effectively advocate for the child, e)cept privileged communications;

A.M. NO. 004-07-SC No.e>4e% 11, 1000 RULE ON E?AMINATION OF A CHILD 9ITNESS Se)'$on 1. Applicability of the Rule. 1 Bnless otherwise provided, this $ule shall govern the e)amination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. @t shall apply in all criminal proceedings and non1criminal proceedings involving child witnesses. Se)'$on 1. Objectives. 1 The objectives of this $ule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimiCe trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Se)'$on 3. Construction of the Rule. 1 This $ule shall be liberally construed to uphold the best interests of the child and to promote ma)imum accommodation of child witnesses without prejudice to the constitutional rights of the accused. Se)'$on 4. Definitions. 1 (a' A >child witness> is any person who at the time of giving testimony is below the age of eighteen (%9' years. @n child abuse cases, a child includes one over eighteen (%9' years but is found by the court as unable to fully take care of

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(=' 3hall marshal and coordinate the delivery of resources and special services to the child; (0' 3hall e)plain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (!' 3hall assist the child and his family in coping with the emotional effects of crime and subse+uent criminal or non1criminal proceedings in which the child is involved; (:' <ay remain with the child while the child waits to testify; (9' <ay interview witnesses; and (7' <ay re+uest additional e)aminations by medical or mental health professionals if there is a compelling need therefor. (c' The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. 4owever, he may file motions pursuant to sections 7, %;, 0, !, : and &%(c'. @f the guardian ad litem is a lawyer, he may object during trial that +uestions asked of the child are not appropriate to his developmental level. (d' The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e' The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f' The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub1section (b'. Se)'$on 5. Competency. 1 Gvery child is presumed +ualified to be a witness. 4owever, the court shall conduct a competency e)amination of a child, motu proprio or on motion of a party, when it finds that substantial doubt e)ists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a' Proof of necessit5. 1 A party seeking a competency e)amination must present proof of necessity of competency e)amination. The age of the child by itself is not a sufficient basis for a competency e)amination. (b' urden of proof. 1 To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c' Persons allo-ed at co%petenc5 e(a%ination. 5nly the following are allowed to attend a competency e)amination? (%' The judge and necessary court personnel; ( ' The counsel for the parties; (&' The guardian ad litem; (=' 5ne or more support persons for the child; and (0' The defendant, unless the court determines that competence can be fully evaluated in his absence. (d' 'onduct of e(a%ination. 1 G)amination of a child as to his competence shall be conducted only by the judge. (ounsel for the parties, however, can submit +uestions to the judge that he may, in his discretion, ask the child. (e' 1evelop%entall5 appropriate *uestions. 1 The +uestions asked at the competency e)amination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f' 'ontinuing dut5 to assess co%petence. 1 The court has the duty of continuously assessing the competence of the child throughout his testimony. Se)'$on 7. Oath or affirmation. 1 2efore testifying, a child shall take an oath or affirmation to tell the truth. Se)'$on 8. E amination of a child !itness. 1 The e)amination of a child witness presented in a hearing or any proceeding shall be done in open court. Bnless the witness is incapacitated to speak, or the +uestion calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this $ule. Se)'$on 9. "nterpreter for child. 1 (a' *hen a child does not understand the Gnglish or 6ilipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b' @f a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be dis+ualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c' An interpreter shall take an oath or affirmation to make a true and accurate interpretation. Se)'$on 10. #acilitator to pose $uestions to child. 1 (a' The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to +uestions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b' @f the court appoints a facilitator, the respective counsels for the parties shall pose +uestions to the child only through the facilitator. The +uestions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c' The facilitator shall take an oath or affirmation to pose +uestions to the child according to the meaning intended by counsel. Se)'$on 11. %upport persons. 1 (a' A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (%' 2oth support persons shall remain within the view of the child during his testimony.

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( ' 5ne of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (&' The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (=' The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b' @f the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. (c' @f the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. Se)'$on 11. &aitin' area for child !itnesses. 1 The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. Se)'$on 13. Courtroom environment. 1 To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. 8othing in this section or any other provision of law, e)cept official in1court identification provisions, shall be construed to re+uire a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. Se)'$on 14. (estimony durin' appropriate hours. 1 The court may order that the testimony of the child should be taken during a time of day when the child is well1rested. Se)'$on 12. Recess durin' testimony. 1 The child may be allowed reasonable periods of relief while undergoing direct, cross, re1 direct, and re1cross e)aminations as often as necessary depending on his developmental level. Se)'$on 15. (estimonial aids. 1 The court shall permit a child to use dolls, anatomically1 correct dolls, puppets, drawings, manne+uins, or any other appropriate demonstrative device to assist him in his testimony. Se)'$on 17. Emotional security item. 1 *hile testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. Se)'$on 18. Approachin' the !itness. 1 The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. Se)'$on 19. )ode of $uestionin'. 1 The court shall e)ercise control over the +uestioning of children so as to (%' facilitate the ascertainment of the truth, ( ' ensure that +uestions are stated in a form appropriate to the developmental level of the child, (&' protect children from harassment or undue embarrassment, and (=' avoid waste of time. The court may allow the child witness to testify in a narrative form. Se)'$on 10. *eadin' $uestions. 1 The court may allow leading +uestions in all stages of e)amination of a child if the same will further the interests of justice. Se)'$on 11. Objections to $uestions. 1 5bjections to +uestions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Se)'$on 11. Corroboration. 1 (orroboration shall not be re+uired of a testimony of a child. 4is testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof re+uired in criminal and non1 criminal cases. Se)'$on 13. E cludin' the public. 1 *hen a child testifies, the court may order the e)clusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. 3uch an order may be made to protect the right to privacy of the child or if the court determines on the record that re+uiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. @n making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, e)clude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, e)clude the public from trial, e)cept court personnel and the counsel of the parties. Se)'$on 14. +ersons prohibited from enterin' and leavin' courtroom . 1 The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. Se)'$on 12. *ive,lin- television testimony in criminal cases !here the child is a victim or a !itness. 1 (a' The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live1link television. 2efore the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. @n case the guardian ad ltiem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (0' days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b' The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live1link television. (c' The judge may +uestion the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The +uestions of the judge shall not

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be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d' The judge may e)clude any person, including the accused, whose presence or conduct causes fear to the child. (e' The court shall issue an order granting or denying the use of live1link television and stating the reasons therefor. @t shall consider the following factors? (%' The age and level of development of the child; ( ' 4is physical and mental health, including any mental or physical disability; (&' Any physical, emotional, or psychological injury e)perienced by him; (=' The nature of the alleged abuse; (0' Any threats against the child; (!' 4is relationship with the accused or adverse party; (:' 4is reaction to any prior encounters with the accused in court or elsewhere; (9' 4is reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (7' 3pecific symptoms of stress e)hibited by the child in the days prior to testifying; (%;' Testimony of e)pert or lay witnesses; (%%' The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (% ' 5ther relevant factors, such as court atmosphere and formalities of court procedure. (f' The court may order that the testimony of the child be taken by live1link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g' @f the court orders the taking of testimony by live1link television? (%' The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed1circuit television e+uipment; and other persons whose presence are determined by the court to be necessary to the welfare and well1being of the child; ( ' The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live1 link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless e)cluded. (&' @f it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (=' The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (h' The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section &%(b'. Se)'$on 15. %creens. one,!ay mirrors. and other devices to shield child from accused. 1 (a' The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. 2efore the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 0(a' of this $ule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. (b' @f the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. Se)'$on 17. ,$!eo'(*e! !e*o&$'$on. 1 (a' The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. 2efore the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 0(a'. (b' @f the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (c' The judge shall preside at the videotaped deposition of a child. 5bjections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are? (%' The prosecutor; ( ' The defense counsel; (&' The guardian ad litem; (=' The accused, subject to sub1section (e'; (0' 5ther persons whose presence is determined by the court to be necessary to the welfare and well1being of the child; (!' 5ne or both of his support persons, the facilitator and interpreter, if any; (:' The court stenographer; and (9' Persons necessary to operate the videotape e+uipment. (d' The rights of the accused during trial, especially the right to counsel and to confront and cross1e)amine the child, shall not be violated during the deposition. (e' @f the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be e)cluded from the room in which the deposition is conducted. @n case of e)clusion of the accused, the court shall order that the testimony of the child be

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taken by live1link television in accordance with section 0 of this $ule. @f the accused is e)cluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f' The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g' The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h' The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section &%(b'. (i' @f, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 0(f' of this $ule, or is unavailable for any reason described in section =(c', $ule & of the %77: $ules of (ivil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. (j' After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. Se)'$on 18. /earsay e ception in child abuse cases. 1 A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non1criminal proceeding subject to the following rules? (a' 2efore such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. @f the child is available, the court shall, upon motion of the adverse party, re+uire the child to be present at the presentation of the hearsay statement for cross1e)amination by the adverse party. *hen the child is unavailable, the fact of such circumstance must be proved by the proponent. (b' @n ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. @t shall consider the following factors? (%' *hether there is a motive to lie; ( ' The general character of the declarant child; (&' *hether more than one person heard the statement; (=' *hether the statement was spontaneous; (0' The timing of the statement and the relationship between the declarant child and witness; (!' (ross1e)amination could not show the lack of knowledge of the declarant child; (:' The possibility of faulty recollection of the declarant child is remote; and (9' The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c' The child witness shall be considered unavailable under the following situations? (%' @s deceased, suffers from physical infirmity, lack of memory, mental illness, or will be e)posed to severe psychological injury; or ( ' @s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d' *hen the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. Se)'$on 19. Admissibility of videotaped and audiotaped in,depth investi'ative or disclosure intervie!s in child abuse cases. 1 The court may admit videotape and audiotape in1depth investigative or disclosure interviews as evidence, under the following conditions? (a' The child witness is unable to testify in court on grounds and under conditions established under section 9 (c'. (b' The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c' The party offering the videotape or audiotape must prove that? (%' the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; ( ' the statement was not made in response to +uestioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (&' the videotape and audiotape machine or device was capable of recording testimony; (=' the person operating the device was competent to operate it; (0' the videotape or audiotape is authentic and correct; and (!' it has been duly preserved. The individual conducting the interview of the child shall be available at trial for e)amination by any party. 2efore the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as re+uired by this section shall not by itself constitute a basis to e)clude from evidence out1of1court statements or testimony of the child. @t may, however, be considered in determining the reliability of the statements of the child describing abuse. Se)'$on 30. %e ual abuse shield rule. 1 (a' @nadmissible evidence. 1 The following evidence is not admissible in any criminal proceeding involving alleged child se)ual abuse? (%' Gvidence offered to prove that the alleged victim engaged in other se)ual behavior; and

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( ' Gvidence offered to prove the se)ual predisposition of the alleged victim. (b' G)ception. 1 Gvidence of specific instances of se)ual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must? (%' 6ile a written motion at least fifteen (%0' days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, re+uires a different time for filing or permits filing during trial; and ( ' 3erve the motion on all parties and the guardian ad litem at least three (&' days before the hearing of the motion. 2efore admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section &%(b'. The child shall not be re+uired to testify at the hearing in chambers e)cept with his consent. Se)'$on 31. +rotection of privacy and safety. 1 (a' 'onfidentialit5 of records. 1 Any record regarding a child shall be confidential and kept under seal. G)cept upon written re+uest and order of the court, a record shall only be released to the following? (%' <embers of the court staff for administrative use; ( ' The prosecuting attorney; (&' .efense counsel; (=' The guardian ad litem; (0' Agents of investigating law enforcement agencies; and (!' 5ther persons as determined by the court. (b' Protective order. 1 Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows? (%' Tapes may be viewed only by parties, their counsel, their e)pert witness, and the guardian ad litem. ( ' 8o tape, or any portion thereof, shall be divulged by any person mentioned in sub1section (a' to any other person, e)cept as necessary for the trial. (&' 8o person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (=' Gach of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice? >This object or document and the contents thereof are subject to a protective order issued by the court in (case title' , (case number' . They shall not be e)amined, inspected, read, viewed, or copied by any person, or disclosed to any person, e)cept as provided in the protective order. 8o additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law.> (0' 8o tape shall be given, loaned, sold, or shown to any person e)cept as ordered by the court. (!' *ithin thirty (&;' days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is e)tended by the court on motion of a party. (:' This protective order shall remain in full force and effect until further order of the court. (c' Additional protective orders. 1 The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. (d' Publication of identit5 conte%ptuous. 1 *hoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e' P)5sical safet5 of c)ildD e(clusion of evidence. 1 A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, re+uire the child to testify regarding personal identifying information in the interest of justice. (f' 1estruction of videotapes and audiotapes. 1 Any videotape or audiotape of a child produced under the provisions of this $ule or otherwise made part of the court record shall be destroyed after five (0' years have elapsed from the date of entry of judgment. (g' Records of 5out)ful offender. 1 *here a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. *here a youthful offender has been charged and the court ac+uits him, or dismisses the case or commits him to an institution and subse+uently releases him pursuant to (hapter & of P. .. 8o. !;&, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone e)cept to determine if a defendant may have his sentence suspended under Article %7 of P. .. 8o. !;& or if he may be granted probation under the provisions of P. .. 8o. 7!9 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any in+uiry made to him for any purpose. >$ecords> within the meaning of this sub1section shall include those which may be in the files of the 8ational 2ureau of @nvestigation and with any police department or government agency which may have been involved in the case. (Art. ;;, P. .. 8o. !;&'

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Se)'$on 31. Applicability of ordinary rules. 1 The provisions of the $ules of (ourt on deposition, conditional e)amination of witnesses, and evidence shall be applied in a suppletory character. Se)'$on 33. Effectivity. 1 This $ule shall take effect on .ecember %0, ;;; following its publication in two ( ' newspapers of general circulation.