[G.R. Nos. 135957-58.

September 17, 2002]

PEOPLE OF THE PHILIPPINES, appellee, vs. GUILLERMO
SAMUS, appellant.
D E C I S I O N
PANGANIBAN, J.:
While it is true that the confessions of appellant were made
without benefit of counsel, they are still admissible in
evidence because of appellants failure to make timely
objections before the trial court. If only the defense had
proffered them on time, the prosecution could have been
warned of the need to present additional evidence to support
its case. To disregard a major portion of the prosecutions
case at a late stage during an appeal goes against the norms
of fundamental fairness. Indeed, justice is dispensed not only
for the accused, but also for the prosecution. Be that as it
may, and even if we now affirm appellants conviction for
murder, we do not, however agree with the trial courts
imposition of the death sentence, because the proven
aggravating circumstance of dwelling was not alleged in the
Information.
The Case
For automatic review by this Court is the Decisioni[1] dated
October 8, 1998, issued by the Regional Trial Court of
Calamba, Laguna, Branch 36, in Criminal Case Nos. 5015-96-C
and 5016-96-C. The trial court found Guillermo Samus guilty
beyond reasonable of two counts of murder. The decretal
portion of its Decision reads as follows:
WHEREFORE:
A. With respect to Criminal Case No. 5015-96-C for the
killing of Dedicacion Balisi, the Court finds the accused guilty
beyond reasonable doubt of the crime of Homicide and is
hereby sentenced to suffer the penalty of, after appreciating
the aggravating circumstance of dwelling and after applying
the Indeterminate Sentence Law, imprisonment of 10 years
and 1 day of Prision Mayor as minimum up to 20 years of
Reclusion Temporal as maximum.
The accused is hereby ordered to indemnify the heirs of
Dedicacion Balisi the amount of FIFTY THOUSAND PESOS
(P50,000.00) for her death and another FIFTY THOUSAND
PESOS (P50,000.00) as and for moral and actual damages and
cost of suit.
B. With respect to Criminal Case No. 5016-96-C for the killing
of John Ardee Balisi, this Court finds the accused guilty
beyond reasonable doubt, of the crime of Murder and is
hereby sentenced to suffer the penalty of, after appreciating
the aggravating circumstance of dwelling, death.
The accused is likewise ordered to indemnify the heirs of
John Ardee Balisi the amount of FIFTY THOUSAND PESOS
(P50,000.00) for his death and another FIFTY THOUSAND
PESOS (P50,000.00) as and for moral and actual damages and
cost of suit.ii[2]
Two separate Informations,iii[3] both filed on November 27,
1996,iv[4] charged appellant as follows:
Criminal Case No. 5015-96-C
That on or about 2:30 oclock in the afternoon of September
2, 1996 at San Ramon de Canlubang, Brgy. Canlubang,
Municipality of Calamba, Province of Laguna, and within the
jurisdiction of this Honorable Court, the accused above-
named, with intent to kill, treachery, evident premeditation
and taking advantage of superior strength, did then and there
wilfully, unlawfully and feloniously hold the neck, strangle
and thereafter bange[d] the head on the concrete pavement
floor of one DEDICACION BALISI Y SORIANO, a 61 years of
age, woman, thereby inflicting upon her fractured bones,
serious and mortal wounds which directly caused her death,
to the damage and prejudice of the surviving heirs of the said
Dedicacion Balisi y Soriano.
That in the commission of the crime the aggravating
circumstances of treachery, evident premeditation and taking
advantage of superior strength were in attendant and
ordinary aggravating circumstance committing a crime with
disregard of respect due the offended party by reason of her
age and sex.
Criminal Case No. 5016-96-C
That on or about 4:30 oclock in the afternoon of September
2, 1996 at San Ramon de Canlubang, Brgy. Canlubang,
Municipality of Calamba, Province of Laguna and within the
jurisdiction of this Honorable Court, the accused above-
named, with intent to kill, treachery, evident premeditation
and taking advantage of superior strength, did then and there
wilfully, unlawfully and feloniously hold the neck, strangle
and thereafter bang[ed] the head on the concrete pavement
floor of one JOHN ARDEE BALISI Y SORIANO, a six year old
boy, thereby inflicting upon him fractured bones, serious and
mortal wounds which directly caused his death, to the
damage and prejudice of the surviving heirs of the said John
Ardee Balisi y Soriano.
That in the commission of the crime the aggravating
circumstances of treachery, evident premeditation and taking
advantage of superior strength were in attendan*ce+.
When arraigned on May 28, 1997, appellant, assisted by his
counsel de oficio,v[5] pleaded not guilty.vi[6] In due course,
he was tried and found guilty.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarized the
evidence for the prosecution in this wise:vii[7]
Appellant was a farmer, tilling and living in the land of
Miguel Completo at Barangay Niugan, Cabuyao, Laguna. The
victims, sixty two (62) year old Dedicacion Balisi and her
grandson, six (6) year old John Ardee Balisi, were the
neighbors of appellants father at San Ramon de Canlubang,
Brgy. Canlubang, Calamba, Laguna.
At 4:20 P.M. on September 2, 1996, Senior Police (SP)
Inspector Rizaldy H. Garcia was at his office at the 4
th
PNP
Criminal Investigation Group Regional Office at Camp Vicente
Lim in Calamba, Laguna when he received an order from his
superior to investigate the murder of the two victims. Their
office had received a telephone call from a local barangay
official informing them of the victims deaths.
Arriving at the victims residence at Block 8, Lot 6 at San
Ramon, Brgy. Canlubang, Calamba, Garcia and his team
conducted an investigation, making a sketch of the relative
positions of the victims, lifting fingerprints from the crime
scene and taking pictures. Thereafter, an investigation report
was prepared by Garcia and signed by his superior, Colonel
Pedro Tango. The investigators likewise found a pair of
maong pants, a white T-shirt, a handkerchief and dirty
slippers in the bathroom and roof of the house. A pair of
earrings worn by Dedicacion Balisi was likewise reported
missing from her body by her daughter, Nora B. Llore[r]a.
The victims bodies were brought to the Funeraria Seerez
de Mesa in Calamba where Senior Inspector Joselito A.
Rodrigo, a medico-legal officer of the PNP Crime Laboratory,
performed an autopsy. His findings showed that John
sustained three (3) contusions, one of which lacerated his
liver, caused by a blunt instrument, while Dedicacion suffered
four (4) contusions, also caused by a blunt instrument.
On that same day, September 2, 1996, Ponciano Pontanos,
Jr., then a resident of Barangay Niugan, Cabuyao and an
acquaintance of appellant, happened to meet appellant at
Sammy Pachecas house in the same barangay where
appellant asked Ponciano to accompany him to Poncianos
wife to pawn a pair of earrings. Poncianos wife was mad at
first but upon Poncianos prodding, gave appellant P300.00
with no interest. The earrings were placed in a jewelry box;
thereafter, appellant received another P250.00.
At 6:00 P.M. on September 10, 1996, Major Jose Pante of
the Criminal Investigation Group received information that
appellant was the principal suspect in the killing of the two
(2) victims and that he was sighted inside the residence of
spouses Rolly and Josie Vallejo at Barangay Macabling, Sta.
Rosa, Laguna. He then formed and led a team composed of
SPO3 Galivo, Intelligence Commission Officer Casis and SPO3
Mario Bitos. Arriving at the site at past 7:00 P.M., the team,
accompanied by local barangay authorities, asked permission
from the Vallejo spouses to enter the house, which was
granted. Shortly thereafter, they heard loud footsteps on the
roof. Rushing outside, they saw appellant crawling on the
roof. They ordered him to stop, but he suddenly jumped
from the roof and landed hard on the ground, sustaining an
injury on his ankle and bruises on his left and right forearm.
At that point, the police team closed in on appellant who,
while trembling and shaking, admitted the killings upon a
query from Rolly Vallejo.
Appellant was brought to the Camp Vicente Lim PNP
Investigation Office where he was informed of his
constitutional rights by SPO3 Alex Malabanan. In the
morning of September 11, 1996, appellant, assisted by Atty.
Arturo Juliano, gave his statement admitting the killings.
SPO3 Malabanan also took the statements of tricycle driver
Rafael Baliso, the victims relatives Salvacion and Mona Balisi
and witness Mary Arguelles, who saw appellant enter the
house of Dedicacion Balisi.
On the same day, September 11, 1996, PNP Fingerprint
Examiner Reigel Allan Sorra took fingerprint samples from
appellant. His prints exactly matched with a set of prints
found at the crime scene on September 2, 1998. Later that
day, SPO3 Mario Bitos was able to recover the pawned
earrings from Ponciano who turned them over to SPO3
Malabanan. (Citations omitted)
Version of the Defense
Alleging denial and alibi as defenses, appellant presents his
version of the incident as follows:viii[8]
Mrs. Fe Vallejo testified that she knew Guillermo Samus. At
about 6:00 p.m. of September 10, 1996, Guillermo Samus was
in their house. It was then that CIS operatives together with
their Brgy. Captain entered their house, arrested and
handcuffed Guillermo Samus. It was not true that accused
Guillermo Samus hid himself on the roof of her house. When
the accused was arrested by the CIS men, together with the
barangay officials, the other persons present were the
witness and her 3 children. The police were not armed with a
warrant of arrest or search warrant.
Accused Guillermo Samus denied the accusations against
him. He testified that he was a farmer, working on the land
of one Miguel Completo at Brgy. Niugan, Cabuyao. From 6:00
a.m. to 5:00 p.m. of September 2, 1996, he was harvesting
palay with Eligio Completo; that he never left the farm. He
took his lunch at the hut of Miguel Completo; that he arrived
home at 6:00 in the afternoon, took his dinner then went to
sleep.
He further testified that on September 10, 1996, he was at
the house of his friend, Rolly Vallejo at Brgy. Macabling, Sta.
Rosa, Laguna, when a group of CIS operatives arrived and
arrested him inside the same house. It was not true that he
jumped from the roof of the house. The CIS people did not
have any warrant for his arrest. His kumpadre Rolly Vallejo
was not present at that time. He was brought to Camp
Vicente Lim where he was tortured until he lost his
consciousness. On the same night, he was brought to a
hospital, was given medicine, then brought back to the cell
where he was handcuffed at the door of the cell. The CIS got
hold of the medical certificate. He was forced by the CIS to
admit the killing of the victims and the sale of jewelry by
means of torture and threat.
He also testified that he was forced to execute a document
admitting the killing. He was forced to sign said document.
He did not know Atty. Juliano and did not talk to him. The
victims were the neighbors of his father in the province. He
had been in the house of Dedicacion Balisi. He was known to
Dedicacion Balisi and her household; and, that the last time
he visited the house of Dedicacion Balisi was on August 30,
1996. He was given food by Dedicacion and he later washed
dishes, swept the floor, and put dirt in the trash can. He left
at 12:00 p.m. that same date and returned to his house in
Brgy. Niugan.
On cross-examination, he testified that from Brgy. Niugan to
San Ramon de Canlubang it took less than 15 minutes to
travel, and he also mentioned that the media interviewed
him 2 days after his arrest. He and his relatives in Laguna did
not have the capacity to hire/secure the services of a lawyer.
The defense also presented Exhibit B (and submarkings),
the transcript of stenographic notes of the testimony of Atty.
Juliano, given before the Municipal Trial Court of Calamba,
Laguna on December 1, 1997 in connection with [C]riminal
[C]ase [N]o. 26099, also against Guillermo Samus for theft (of
the earrings). The prosecution admitted the existence of said
exhibit and the presentation of the witness who was
supposed the identify the same was dispensed with.
(Citations omitted)
Ruling of the Trial Court
The trial court found enough pieces of circumstantial
evidence to prove the guilt of appellant beyond reasonable
doubt. Rejecting his alibi for being unreliable and
uncorroborated, it convicted him of homicide for the death of
Dedicacion Balisi; and of murder, with dwelling as aggravating
circumstance, for the death of John Ardee Balisi.
Hence, this automatic review.ix[9]
Assignment of Errors
In his Brief, appellant faults the court a quo with the following
alleged errors:x[10]
I
The lower court gravely erred in giving credence to the
testimonies of police officers to the effect that the accused
tried to escape when he was arrested and that he readily
admitted responsibility for the crimes.
II
The lower court gravely erred in admitting and considering
evidence that were obtained in violation of the accuseds
constitutional rights.
III
The lower court gravely erred in holding that there was
sufficient circumstantial evidence to warrant the conviction
of the accused.
IV
The lower court gravely erred when it ruled that the
qualifying circumstance of abuse of superior strength
attended the killing of John Ardee Balisi.
The Courts Ruling
The appeal is partly meritorious.
First Issue:
Arrest of Appellant
As a general rule, the evaluation by the trial court of the
testimony of the witnesses is accorded great respect, if not
finality. In the present case, however, there are cogent
reasons to disregard its findings with respect to the arrest of
appellant on September 10, 1996.
The police officers version of the arrest is incredible. Not
only are their allegations uncertain and inconsistent, they are
also contrary to human experience. We find it hard to
believe that anyone would jump from the roof of a two-story
house to escape and, after landing on the ground without any
broken bones, make a complete turnaround and just meekly
surrender without further ado. Even if this story were true,
jumping from a roof is not a crime that would justify the
warrantless arrest of appellant.
It is undisputed that when the CIS team went to the Vallejo
residence on the evening of September 10, 1996, it had no
warrant of arrest against appellant. Yet, they arrested him.
Under the Rules,xi[11] peace officers may, without a warrant,
arrest a person under any of these circumstances: (a) when,
in their presence, the person to be arrested has committed, is
actually committing, or is attempting to commit, an offense;
(b) when an offense has just been committed, and they have
probable cause to believe, based on personal knowledge of
facts or circumstances, that the person to be arrested has
committed it; and (c) when the person to be arrested is a
prisoner who has escaped while being transferred from one
confinement to another, or from a penal establishment
where he or she is serving final judgment or is temporarily
confined while the case is pending.
None of these circumstances was present when members of
the Criminal Investigation Group (CIG) arrested appellant. He
was not a prisoner. The killing of Dedicacion and John Ardee
Balisi was not done in the presence of the arresting officers.
Since it took place on September 2, 1996, it could not have
been considered as having just been committed. Evidently,
they unlawfully arrested appellant on September 10, 1996.
When they did so, we cannot ascribe to them the
presumption of regularity in the performance of official
functions, contrary to the court a quos finding.
Considering that the arrest of appellant was unlawful, the
apprehending officers uncertainty and reluctance in
admitting it becomes understandable. In their Joint Affidavit
executed on September 11, 1996, they alleged that he had
voluntarily surrendered to them. On the other hand, he had
allegedly been merely invited by Chief Inspector Jose Pante,
according to SPO3 Alex Malabanan. It was only upon being
pressed that the police officers admitted that they had
indeed made the arrest.xii[12]
We now proceed to the alleged confession. In their Joint-
Affidavit, the arresting officers said that after appellant had
initially jumped from a two-story house to escape, they
closed in on him and he voluntarily surrendered. At the same
place where he did so, they conducted a preliminary
interview, during which he readily admitted killing Dedicacion
and John Ardee Balisi.
But during their testimonies, the police officers denied
questioning appellant after arresting him. Instead, they
claimed that it was Rolly Vallejo who had conducted the
preliminary interview in their presence as follows: Pare
totoo ba ang sinasabi nila tungkol sa iyo na ikaw ay
pinaghihinalaan nilang pumatay sa mag-lola sa
Canlubang[?]; to this question appellant allegedly answered,
[T]otoo nga pare, ako nga. No further questions were
allegedly asked by the law enforcement officers. Instead,
they immediately brought appellant to Camp Vicente Lim for
further investigation.
SPO3 Mario Bitos, on the other hand, stated in his Affidavit,
also dated September 11, 1996, that during the conduct of
the preliminary interview, appellant admitted that the
victims pair of earrings made of gold was taken by him after
the incident and x x x sold to Mr. Jhun Pontanos y Matriano, a
resident of Bgy. Niugan, Cabuyao, Laguna, for the amount of
five hundred (P500) pesos.
During his testimony, however, Bitos denied that they had
conducted any investigation.xiii[13] Instead, he claimed that
upon their arrival at Camp San Vicente Lim, an interview was
conducted by the media in the presence of Major Pante,
SPO3 Bitos and SPO3 Malabanan (the investigator).xiv[14]
From this interview, the team was able to cull from appellant
that he was responsible for the killings, and that he had
stolen the earrings of Dedicacion Balisi and sold them to
Pontanos for P500. This information was allegedly verified by
Bitos upon the order of Major Pante.
Thus, the apprehending officers contend that the
constitutional rights of appellant were not violated, since
they were not the ones who had investigated and elicited
evidentiary matters from him.
We are not persuaded. The events narrated by the law
enforcers in court are too good to be true. Their Sworn
Statements given a day after the arrest contradict their
testimonies and raise doubts on their credibility.
We find the claims of appellant more believable, supported
as they are by Fe Vallejo who testified that he had been
arrested inside her house, and that Rolly Vallejo was not
around then.
Evidence to be believed, must not only proceed from the
mouth of a credible witness, but must be credible in itself --
such as [that which] the common experience of mankind can
approve as probable under the circumstances. We have no
test of the truth of human testimony, except its conformity to
our knowledge, observation, and experience. Whatever is
repugnant to these belongs to the miraculous and is outside
of judicial cognizance.xv[15]
Second Issue:
Fruit of the Poisonous Tree
Appellant claims that his alleged confession to the media
while in police custody cannot be admitted in evidence. He
further contends that the pair of earrings, the turnover
receipt, as well as the testimonies of Pontaos and Bitos,
relative thereto should be excluded for being fruits of the
poisonous tree.
We clarify. After being illegally arrested, appellant was not
informed of his constitutional rights to remain silent and to
have competent and independent counsel. Hence, any
admission elicited from him by the law enforcers during
custodial investigation are normally inadmissible in evidence.
In their affidavits, the police officers readily admitted that
appellant was subjected to a preliminary interview. Yet,
during their examination in open court, they tried to skirt this
issue by stating that it was only the media that had
questioned appellant, and that they were merely present
during the interview.
However, an examination of the testimonies of the three law
enforcers show the folly of their crude attempts to
camouflage inadmissible evidence. SPO4 Arturo Casis
testified as follows:
FISCAL:
Q: And after that what did you do with the accused
Guillermo Samus?
WITNESS:
A: He went with us voluntarily in Camp.
Q: Camp what?
A: Camp Vicente Lim, Canlubang, Laguna.
Q: After arriving at Camp Vicente Lim what happened
there?
A: We turned over him to our investigator CIS.
Q: To whom in particular?
A: SPO3 Alex Malabanan, sir.
Q: What was the purpose for your turning over the
accused to Alex Malabanan?
A: To ask him question and to investigate him.
Q: Before that when you arrived at the camp, did you
see many people at the camp?
A: I noticed some reporters were there.
Q: Where were the reporters at that time?
A: In our office.
Q: Do you know the reason why these reporters were
there at that time?
A They used to hang out at our office because they
have a press office holding in our office.
Q: Did you notice these press people when you brought
Guillermo Samus to the camp?
A: Yes, sir.
Q: What did they do when you arrived?
A: They keep on asking who is this fellow we have
arrested.
Q: Did anyone answer them?
A: Its up for the investigator and Maj. Pante.xvi[16]
x x x x x x x x x
Q: And the apprehending team did not ask question
regarding the alleged involvement of Guillermo Samus to the
kiling?
A: At the office, sir.xvii[17]
On the other hand, SPO3 Bitos declared:
Q And you said that in your earlier testimony that
Guillermo Samus was immediately brought to Camp Vicente
Lim which is your headquarters after his arrest on September
10, 1996, is that correct?
A Yes, sir.
Q And you said that the purpose of bringing Guillermo
Samus to your headquarters on that day after his arrest was
for further investigation, is that correct?
A Yes, sir.
Q The member of the CID once Guillermo Samus was
there in your custody at Camp Vicente Lim he was
immediately investigated right then and there in the
headquarters, is that correct?
A He was interviewed by the media people upon the
arrival of said suspect. We were not able to conduct the
investigation because of the media people who was also
asking question from him, sir.
Q Who authorized the media people to propound
questions to Guillermo Samus when he was at your
headquarters in the night of September 10, 1996?
A I think nobody has given the authority to conduct a
preliminary investigation with Guillermo Samus that is why
we were bother our investigation because these media
people were conducting immediate interview with that
suspect, sir.xviii[18]
x x x x x x x x x
For his part, SPO3 Malabanan gave the following testimony
during his cross-examination:
Q By the way, what time did Guillermo Samus finish
giving the statement to the media people on the night of
September 10, 1996?
A I cannot recall the exact time as to when he finished
but I think it is past 8:00 oclock, sir.
Q If you know the reason, can you tell us why
Guillermo Samus had to be presented to the media first
before you as an investigator assigned to the case actually
take his statement?
May I request, your Honor that the statement of the witness
transpired in the vernacular be quoted (sila na po and nag-
interview).
A Because when we arrived at that time the press
people were already there and we can no longer prevent
from asking or conducting an investigation or interview
because the case is already on public knowledge.
ATTY. MANALO:
Q So, after 8:00 p.m. when Guillermo Samus had
already finished giving his statement to the media, do you
know where Guillermo Samus was brought?
WITNESS:
A Yes, sir.
Q Can you tell us where?
A Yes, sir. After that Guillermo Samus was brought to
our office and Maj. Pante talked to him, sir.
Q And do you know where Guillermo Samus spent the
night?
A Yes, sir.
Q Can you tell us where?
A In our stockade, sir.xix[19]
The above testimonies do not tie up. Casis categorically
stated that appellant had been turned over to SPO3
Malabanan. Appellant noticed reporters in their office, but
he did not answer their questions. SPO3 Bitos alleged that
the interview by the media could not have been prevented,
because it was an ambush interview. Meanwhile, SPO3
Malabanan claimed that when he arrived at the camp, there
were already reporters questioning appellant. Malabanan
further narrated that after 8:00 p.m., appellant was brought
to the office where Major Pante talked to him.
In the absence of testimony from any of the media persons
who allegedly interviewed appellant, the uncertainties and
vagueness about how they questioned and led him to his
confession lead us to believe that they themselves
investigated appellant and elicited from him uncounselled
admissions. This fact is clearly shown by the Affidavits they
executed on September 11, 1997, as well as by their
testimonies on cross-examination.
Nonetheless, even if the uncounselled admission per se may
be inadmissible, under the present circumstances we cannot
rule it out because of appellants failure to make timely
objections. Indeed, the admission is inadmissible in
evidence under Article III, Section 12(1) and (3) of the
Constitution, because it was given under custodial
investigation and was made without the assistance of
counsel. However, the defense failed to object to its
presentation during the trial, with the result that the defense
is deemed to have waived objection to its
admissibility.xx[20]
Can the testimony of Pontaos and the picture of a pair of
earrings together with the turnover receipt, which appellant
identified during his testimony, be considered inadmissible as
the fruit of the poisonous tree and hence be disregarded at
this stage of appeal?
Upon examination of the records, we find that during the
entire examination in court of Prosecution Witness Pontaos,
appellant did not question or object to the admissibility of the
formers testimony. Worse, the latters counsel even freely
cross-examined the witness without any reservations. Having
made no objection before the trial court, appellant cannot
raise this question for the first time on appeal.xxi[21] The
evidence having been admitted without objection, we are not
inclined to reject it.
If only appellant had made a timely objection to the
admissibility of the said testimony, the prosecution could
have been warned of the need to present additional evidence
to support its case. To disregard unceremoniously a major
portion of its case at this late stage when it can no longer
present additional evidence as substitute for that which is
now claimed to be inadmissible goes against fundamental
fairness.
Third Issue:
Circumstantial Evidence
No one saw who killed Dedicacion and John Ardee Balisi.
However, to prove appellants culpability for their deaths, the
prosecution presented the following circumstantial evidence:
1. Finger and palm prints matching appellants own were
found near bloodstains at the scene of the crime.
2. Dedicacion Balisi owned a pair of earrings that she wore
every day. Those earrings were missing from her dead body.
Appellant pawned those same earrings to Ponciano
Pontaos wife on the afternoon of September 2, 1996.
3. Appellant admitted killing Dedicacion and John Ardee
Balisi, whose dead bodies were found inside their residence
on the afternoon of September 2, 1996.
Circumstantial evidence would be sufficient for conviction, if
(a) there is more than one circumstance, (b) the facts from
which the inferences have been derived are proven, and (c)
the combination of all the circumstances is such that it
produces a conviction beyond reasonable doubt. These
circumstances must be consistent with one other, and the
only rational hypothesis that can be drawn therefrom must
be that the accused is guilty. They must create a solid chain
of events, coherent and intrinsically believable, that pinpoints
the accused -- to the exclusion of others -- as the perpetrator
of the crime and thereby sufficiently overcomes the
presumption of innocence in his or her favor.xxii[22]
In the present case, it is indisputable that someone entered
the house of Dedicacion and John Ardee Balisi, and that
someone killed them and left the house with Dedicacions
earrings.
The left palm and right thumb prints of appellant near the
bloodstains found on the kitchen tiles, together with other
blood-smudged fingerprints, lead to no other reasonable
conclusion except that he was in the house in the afternoon
when the victim died. Considering that the former had
bloodstained hands, it can reasonably be deduced that his
hands were responsible for producing the flow of blood
(shown in the pictures marked as Exhibits E to 7) from the
heads of Dedicacion and John Ardee Balisi.
The act of appellant -- pawning the earrings of Dedicacion
Balisi on the same afternoon of her death -- is consistent
with, and further supports the conclusion that he was at the
crime scene around the time of her killing.
The absence of any indication of the presence of any person
other than appellant at the locus criminis around the time of
the victims deaths further bolsters the hypothesis that he, to
the exclusion of all others, was the one who killed them.
The pieces of circumstantial evidence presented by the
prosecution are consistent with one other, and the only
rational hypothesis that can be drawn therefrom is that
appellant is guilty of killing Dedicacion and John Ardee Balisi.
The prosecution evidence, taken together with the
extrajudicial admissions of appellant, passes the test of moral
certainty and establishes beyond reasonable doubt that he
was the person who killed the victims.
Alibi
Appellants uncorroborated alibi -- that he was at the farm in
Cabuyao, Laguna -- was correctly debunked by the court a
quo. We have nothing to add to the trial courts short and
straightforward discussion of the matter, which we reproduce
hereunder:
For alibi to prosper, the accused must establish not only that
he was somewhere else when the crime was committed but
that it was also physically impossible for him to have been at
the scene of the crime at the time of its commission (People
v. Torrifiel, 326, Phil. 388). By the accuseds own admission,
the distance between his alleged whereabouts at the time of
the commission of the offense and the scene of the crime
was a fifteen minute drive. To the mind of this court, the
accuseds presence at the scene of the crime is not
impossible.xxiii[23]
Fourth Issue:
Crime and Punishment
The testimony of Salvacion Balisi, as well as the Birth
Certificate of John Ardee Balisi (Exhibit II),xxiv[24] prove that
John was only six (6) years old at the time of his death. As
correctly ruled by the court a quo, the killing of *the+ child
[was] characterized by treachery because the weakness of
the victim due to his tender age resulted in the absence of
any danger to the accused.xxv[25] Indeed *i+t has time and
time again been held that the killing of minor children who,
by reason of their tender years, could not be expected to put
up a defense is considered attended with treachery even if
the manner of attack was not shown.xxvi[26] Indubitably,
treachery qualified the killing of six-year-old John Ardee Balisi
as murder.
As for the death of Dedicacion Balisi, however, none of the
qualifying circumstances alleged in the Information was
proven by the prosecution. Hence, appellant can be convicted
of homicide only.
In either of the two cases, the aggravating circumstance of
dwelling cannot be appreciated against appellant, simply
because it was not alleged in the Information.xxvii[27]
There being no aggravating circumstances, the imposable
penalty for the homicidexxviii[28] of Dedicacion Balisi is
reclusion temporal in its medium period. In this case,
appellant is entitled to the benefits of the Indeterminate
Sentence Law. For the same reason, reclusion perpetua -- not
death -- is the correct penalty that should be imposed on
appellant for the murderxxix[29] of John Ardee Balisi.
WHEREFORE, the Decision of the Regional Trial Court of
Calamba, Laguna (Branch 36) is hereby AFFIRMED with the
following MODIFICATIONS : in Criminal Case No. 5015-96-C,
the maximum of the penalty is reduced to 17 years and four
months of reclusion temporal medium; in Criminal Case No.
5016-96-C, the penalty is reduced to reclusion perpetua.
Costs de oficio.
SO ORDERED.

G.R. No. L-69844 February 23, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO POLICARPIO y MIRANDA, accused-appellant.

GANCAYCO, J.:
Convicted of violation of Section 4 Art. II of Republic Act No.
6425 as amended in a decision of the Regional Trial Court of
Rizal, the dispositive part of which reading as follows:
WHEREFORE, finding the accused guilty beyond a
reasonable doubt for Violation of Section 4. Article II of
Republic Act 6425 as amended, the court hereby sentenced
the accused to suffer a penalty of CADENA PERPETUA and to
pay a fine of P30,000.00 without subsidiary imprisonment in
case of insolvency with costs against the accused.
The accused shall be entitled to the full term of his
preventive imprisonment pursuant to Article 29 of the
Revised Penal Code as amended by Republic Act 6127,
provided he abides by the rules imposed upon convicted
prisoners, otherwise, he shall only be entitled to 4/5.
accused Romeo Policarpio y Miranda now interposed, this
appeal to this Court alleging that the trial court committed
the following assigned errors:
I
THE LOWER COURT SERIOUSLY ERRED IN NOT FINDING THAT
CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT
WERE VIOLATED BY THE APPREHENDING NARCOTICS
AGENTS.
II
THE LOWER COURT ERRED IN FINDING THAT ACCUSED-
APPELLANT WAS APPREHENDED IN THE ACT OF SELLING
MARIJUANA, OR IMMEDIATELY THEREAFTER, AND IN FAILING
TO FIND THAT HE WAS CHASED AND CAUGHT IN A RICEFIELD
BETWEEN SITIOS BAGONG BAYAN AND SAN JUAN AT
DARANGAN, BINANGONAN, RIZAL.
III
THE LOWER COURT ERRED IN FAILING TO GIVE CREDENCE TO
THE TESTIMONY OF ACCUSED-APPELLANT AND HIS WITNESS
ISIDRO PARALEJAS.
IV
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT
GUILTY OF VIOLATING THE PROVISIONS OF SECTION 4,
ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED.
The facts of the case as found by the court a quo are as
follows:
On June 16,1984 at 2:00 o'clock in the afternoon,
operatives of the Narcotics Command, Camp Crame headed
by P/Capt. Gabriel Paile swooped down at Bagong Bayan,
Kalawaan, Darangan, Binangonan, Rizal, after receiving an
information that the accused alias Dupong is engaged in the
sale and distribution of marijuana and other prohibited drugs
and tagged as the main source at the area. The team was
organized earlier by Lt. Col. Manuel T. Raval, Commanding
officer, 13th NRU Narcotics Command and was dispatched to
the target area to entrap the accused Romeo Policarpio,
accordingly, Pat. Mangila will pose as a buyer and was
handed the marked P20.00 bill (Exhibit "I" to "I-3") with which
to buy the stuff before they proceeded to the area of
operation. At about 2:00 p.m. same date, the operatives
arrived at Bagong Bayan, Kalawaan, Darangan, Binangonan,
Rizal. Leaving their vehicle at a distance, they posted
themselves at strategic places. The poseur buyer Pat. Enrico
Mangila, together with the informant, looked for the accused
and at about 5:00 o'clock in the afternoon of same date Pat.
Mangila and the informant were able to locate the accused in
front of his house. Thereafter, Pat. Mangila was introduced
by the informant to the accused as the person who needs
some marijuana leaves, and after they had talked with the
accused for a while, the accused gave Pat. Mangila two small
plastic bags containing dried marijuana leaves and rolling
paper (Exhibit "B" to "B-4"). In turn Pat. Mangila gave to the
accused the marked P20.00 bill (Exhibit "I" to "I-3"). As
previously arranged, Pat. Mangila scratched his head and his
companions, Pfc. Basco and Mendiola grabbed and arrested
the accused. From the accused was confiscated the marked
P20.00 bill on his front pocket. After the arrest of the
accused, the latter led his captors to his house and the
operatives seized another six (6) small plastic bags of dried
marijuana leaves together with rolling papers contained in a
bigger plastic bag marked Tie Tae Toe (Exhibit "C" to "C-6")
placed on a top of the refrigerator at the kitchen of their
house. Arrested with the accused is a certain person Rogelio
Policarpio, who turned out to be his cousin and who was
earlier convicted by this Court for Possession of Dried
Marijuana Leaves in Criminal Case No. 273-B of this Court.
The accused and the confiscated prohibited drugs were
brought to Camp Crame and the Marijuana leaves were
turned over to the PCCL for examination (Exhibit "D"). The
PCCL conducted examination over the evidence thus (sic)
over, and rendered its Chemistry Report with the finding that
the evidence thus examined gave a positive result for the test
for marijuana (Exhibit "A" to "A-3"). At the PC Headquarters,
the accused Romeo Policarpio signed a bond paper
acknowledging that the six (6) small plastic bags of marijuana
leaves were confiscated from him (Exhibit "G" to "G-2"). He
likewise signed a document acknowledging the fact that the
marked P20.00 bill was confiscated from him (Exhibit "F" to
"F-1"). Similarly, accused signed a sworn statement where he
opted not to give statement until he is represented by a
counsel (Exhibit "J" to "J-2").
Under the first assigned error appellant claims that Exhibit G
which is a receipt signed by appellant acknowledging that six
(6) small plastic bags of marijuana leaves were confiscated
from him and Exhibit F a receipt signed by appellant
acknowledging that the P20.00 bill involved in the purchase
of the marijuana leaves was confiscated from him are not
admissible in evidence as they were taken in violation of his
constitutional right.
What the records show is that appellant was informed of his
constitutional right to be silent and that he may refuse to give
a statement which maybe used against him, that is why he
refused to give such a written statement unless it is made in
the presence of his lawyer as shown by the paper he signed
to this effect.
1
However, he was made to acknowledge that
the six (6) small plastic bags of dried marijuana leaves were
confiscated from him by signing a receipt
2
and to sign a
receipt for the P 20.00 bill as purchase price of the dried
marijuana leaves he sold to Pat. Mangila.
3

Obviously the appellant was the victim of a clever ruse to
make him sign these alleged receipts which in effect are
extra-judicial confessions of the commission of the offense.
Indeed it is unusual for appellant to be made to sign receipts
for what were taken from him. It is the police officers who
confiscated the same who should have signed such receipts.
No doubt this is a violation of the constitutional right of
appellant to remain silent whereby he was made to admit the
commission of the offense without informing him of his right.
4
Such a confession obtained in violation of the Constitution is
inadmissible in evidence.
The second, third, and fourth assigned errors are factual in
nature wherein the appellant raises the question of credibility
of the witnesses and reiterates his defense denying that he
had been apprehended in the act of selling marijuana and
receiving P 20.00 as payment thereof He alleges that he was
then at a mahjong session and that he was pursued by the
police when they came.
The too-well known rule in this jurisdiction is that the findings
of facts of the trial court are conclusive in this proceeding and
will not be disturbed unless some facts or circumstances may
have been overlooked that may otherwise affect the result of
the case. The Court finds no reason to depart from this rule in
the present case.
While the Court now holds that the receipts for the six (6)
plastic bags of marijuana and the P20.00 bill which appellant
was made to sign
5
are not admissible in evidence against
him, nevertheless there is ample evidence in the record other
than these receipts to establish the commission of the
offense by the appellant. Prosecution witnesses Pat. Enrico
Mangila and Pfc. Jose Basco were present and categorically
attested to the fact that the appellant sold two (2) tea bags of
dried marijuana leaves to Mangila and received as
consideration thereof P 20.00.
6

While the appellant attempts to discredit the testimony of
said police officers, he has not shown any improper motive
why they should testify in the manner that they did. Thus
their testimonies are entitled to full faith and credence.
7
As a
matter of fact courts give much credence to entrapping police
officers, as in this case, as they are presumed to be in the
regular performance of official duties.
8

Drug addiction is one of the most pernicious evils that has
ever crept into our society. More often than not it is the
young who constitute the greater majority of the citizenry
who are the victims. It is of common knowledge that drug
addicts become useless if not dangerous members of society
and in some instances turn up to be among the living dead.
This is the reason why the courts and law enforcement
agencies should continue in their relentless campaign not
merely to minimize but to totally eradicate the evil before it is
too late. And everyone must be involved in this drive if we are
to succeed. The peddlers of drugs are actually agents of
destruction. They deserve no less than the maximum penalty.
WHEREFORE, the decision appealed from is AFFIRMED in toto
with costs against accused-appellant.
SO ORDERED.

G.R. No. L-101003 March 24, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JONATHAN BARLIS Y MERCADO, FERDINAND DOE and
EDUARDO DOE, accused. JONATHAN BARLIS Y MERCADO,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Alfredo U. Malabaguio for accused-appellant.

DAVIDE, JR., J.:
On 30 January 1990, Jonathan Barlis, accompanied by his
uncle,
Pfc. Patrocinio Mercado of the Northern Police District,
surrendered to
Pfc. Mariano Rivera at the Kamias police station, Quezon City.
Jonathan admitted that he was with the group which was
responsible for the killing on
20 January 1990 of Honorina Ballerda inside her house at No.
30, Masaya Street, Gulod, Novaliches, Quezon City, and that
on the same occasion, one of his companions, "Buboy"
(Eduardo Nining), took three men's watches while his other
companion, Ferdie (Ferdinand Lopez) took some money
which they later divided among themselves. Thereafter,
assisted by Atty. Confesor B. Sansano, Chairman of the Legal
Assistance Office of the IBP-Quezon City Chapter, Jonathan
signed a sworn statement wherein he narrated in detail how
the crime was committed and the extent of his participation
therein.
On 6 February 1990, an information
1
for robbery with
homicide, docketed as Criminal Case No. Q-40-10283, was
filed with the Regional Trial Court of Quezon City against
Jonathan Barlis and his companions. Its accusatory portion
reads as follows:
That on or about the 20th day of January,
1990, in Quezon City, Metro Manila,
Philippines, and within the jurisdiction of
this Honorable Court, the above-named
accused, conspiring together, confederating
with and mutually helping one another,
with intent to gain and by means of
violence and intimidation against person,
did then and there wilfully, unlawfully and
feloniously rob HONORINA BALLERDA Y
CASADA, in the following manner, to wit: on
the date and in the place aforementioned,
the said accused pursuant to their
conspiracy went to the house of said
complainant-victim and once inside the
house, rob, took and carted away victim's
personal properties, to wit:
One (1) ladies gold necklace worth P1,500.00
One (1) ladies Seiko wrist watch worth P2,000.00
One (1) diamond stone worth P800.00
Cash money in the amount of P3,000.00
Assorted pieces of jewelry of undetermined value
in the total amount of P7,300.00 and assorted pieces
of jewelry of undetermined amount, belonging to HONORINA
BALLERDA Y CASADA, and on the occasion of said Robbery,
the said accused pursuant to their conspiracy, with intent to
kill and without any justifiable cause, attacked, assaulted and
employed personal violence upon the person of HONORINA
BALLERDA Y CASADA by stabbing her on the neck and upper
chest, thereby inflicting upon her serious and mortal wounds
which were the direct and immediate cause of her untimely
death, to the damage and prejudice of the heirs of the said
victim in the amount aforementioned and in such amount as
may be awarded to them under the provisions of the New
Civil Code.
The case was assigned to Branch 88 of the said
court.
Trial proceeded against Jonathan Barlis only because
the two other accused remained at large.
The witnesses presented by the prosecution to establish its
case were Adela Argate, who was the house helper and
companion of the deceased victim, Pfc. Mariano Rivera, Atty.
Confesor Sansano, Dr. Dario Gajardo, and Wilma Ballerda, the
victim's daughter.
Adela Argate testified that at about 9:20 a.m. of 20 January
1990, Jonathan Barlis and his two other companions entered
the house of Honorina Ballerda with the permission of the
latter. Thereafter, while she was about to cook, Honorina
called her and when she turned to face Honorina, she saw the
latter being pushed ("ginigitgit") by Jonathan and one of his
companions. Another companion, who was carrying an
icepick, grabbed her (Adela), gagged and hogtied her, and
brought her inside the bathroom. She observed that the
volume of the radio was increased and that the two untied
dogs inside the house were barking. She was able to free
herself and when she went out of the bathroom, she noticed
that Jonathan and his companions were no longer in the
house. She then saw the body of Honorina sprawled on the
floor with her face covered with blood. She went out of the
house and asked their neighbors to call the police.
2

She was able to identify Jonathan "because he is tall and had
no hat." His companions were thin and young, but she failed
to identify them because they were always looking down and
were hiding behind Jonathan.
3
She further declared that she
lost a wrist watch and less than P100.00 in cash during the
incident.
4

Pfc. Mariano Rivera testified that he investigated Jonathan
who then voluntarily gave his confession, with the assistance
of Atty. Confesor Sansano of the IBP-Quezon City Chapter,
after he was duly apprised of his constitutional rights in
Tagalog. He identified the extrajudicial confession (Exhibit
"B"), which is in the form of a sworn statement or "salaysay,"
and the advice to Jonathan of his constitutional rights (Exhibit
"A").
5
Atty. Sansano's testimony corroborated that of Rivera.

6
The pertinent part of the extrajudicial confession reads as
follows:
T.3 Alam mo na ba ngayon ang dahilan kung bakit tayo
naririto at nagbibigay ng salaysay?
S Dahil ho sa nasangkot ako sa pagnanakaw at pagpatay sa
loob ng bahay ni Aling Nena sa Masaya St. corner Nenita, RP
Shooters, Gulod, Novaliches, Quezon City.
T.4 Kailan nangyari ang sinasabi mong iyan? Natatandaan
mo pa?
S A beinte ho ng Enero 1990, mga alas-9:00 ng umaga.
T.5 Meron ka bang kasama nang maganap ang
pangyayaring iyan?
S Meron ho, sina FERDIE at BUBOY na mga taga Sta. Lucia
din.
T.6 Alam mo ba kung anong buong pangalan nina FERDIE
at BUBOY?
S Si FERDIE ho ay FERDINAND LOPEZ at si BUBOY ay si
EDUARDO NINING.
T.7 Ang sabi mo ay nasangkot ka sa pagnanakaw at
pagpatay sa bahay ni Aling Nena, sino naman ang napatay at
ninakawan doon?
S Si Aling Nena ho and napatay doon at ninakawan.
T.8 Sino ang pumatay kay Aling Nena?
S Si FERDIE ho, pinagsasaksak ho ng treskantos.
T.9 Nakita mo ba ng sinaksak ni FERDIE si Aling Nena?
S Oho, marami ho, hindi ko matandaan, pero nakita kong
sinaksak niya sa leeg si Aling NENA.
T.10 Ano naman ang dahilan at sinaksak ni FERDIE si Aling
NENA?
S Hoholdapin ho sana namin, pero nanlaban at sumigaw.
T.11 Isalaysay mo nga ang buong pangyayari kung paano
napatay si Aling NENA at napagnakawan.
S Gipit ho kasi ang girlfriend kong si Cristy at kailangang-
kailangan niya ang pera kaya ipinasangla sa akin yun kanyang
Crown Video Home Service. Ngayon, dahil ho sa bagong
galing ako sa trangkaso, isinama ko sina FERDIE at BUBOY
para salisi kami sa pagbuhat dahil sa mabigat yung VHS.
Pagkakatok namin ay pinapasok kami ni Aling NENA. Inaalok
ko sa kanya na isangla o ibenta na yung dala naming VHS.
Tumanggi siya at wala daw pera. Yun namang VHS na
nakalagay sa dala naming bag ay nakabukas at nakapatong sa
ibabaw ng ref. Nang ayaw niyang tanggapin ay isinara ko na
yung zipper ng bag at bubuhatin ko na. Sinenyasan ko sina
Ferdie na aalis na kami pero bigla na lang pinagsasaksak ni
FERDIE yung matanda. Pumalag pa si Aling Nena at sumigaw
habang sinasaksak ni FERDIE. Hanggang sa bumagsak si Aling
NENA ay pumapalag siya. Nabigla ako. Umakyat ako sa itaas
ng bahay at naghalughog. Sumunod din sa akin si FERDIE at
naghalughog. Wala naman akong nakuha.
T.12 Si FERDIE, meron ba siyang nakuha habang
naghahalughog din sa itaas ng bahay?
S Meron akong nakitang ibinulsa niya na galing sa
aparador, hindi ko lang alam kung ano iyon.
T.13 Ano pa ang alam mong nakuha ni FERDIE sa bahay na
iyon?
S Ang alam ko lang ay tatlong relos na panlalaki, isa lang
ang natatandaan ko na SEIKO automatic na stainless, saka
mga barya. Sa tindahan yata niya nakuha iyon dahil si FERDIE
ang pumasok sa tindahan.
T.14 Si BUBOY naman, ano ang alam mong ginawa niya.
S Itinali ho yung katulong at dinala yata sa CR.
T.15 Ayon sa salaysay ni REGINO FLORENCIO, yung asawa
ng biktimang si NENA, nawalan din sila ng mga alahas, meron
ba kayong nakuhang mga alahas kina NENA?
S Wala ho.
T.16 Sa tantiya mo, mga gaano kayo katagal sa loob ng
bahay nina NENA nang umagang mangyari iyon?
S Mga kinse minutos lang ho siguro.
T.17 Ang ibig mo bang sabihin, sa buong panahong iyon,
wala kang nakuhang pera o alahas at mamahaling bagay?
S Wala ho, kasi pagdating namin sa Blumentritt, si FERDIE
lang ang naglabas ng pera. Si Buboy ay inabot sa akin yung
tatlong relos.
T.18 Paano naman kayo nakarating sa Blumentritt?
S Nang paalis na kami ay una-una lang. Una si Buboy,
pangalawa si Ferdie at ako ang huli. Naglakad lang kami
hanggang sa sakayan. Pagdating sa Quirino Highway ay
sumakay kaming tatlo sa jeep na papuntang Blumentritt.
Pagdating doon sa may Avenida ay naghati-hati na lang kami
sa kalye habang naglalakad. Nakaparte kaming tatlo ng tigpo-
four hundred pesos. Naghiwalay na kami at yung dalawa ay
pupunta daw sila sa Alfonso, Cavite. Isinasama nila ako, pero
hindi ako sumama. Tumuloy ako sa bahay ng tiyuhin ko sa
may Grotto. Pero pagkaraan ng may ilang araw ay nagpagala
ako sa Maynila, at bumalik ako sa tiyuhin ko ng January 23,
1990. Hindi ako mapakali.
xxx xxx xxx
(Signed)
JONATHAN M. BARLIS
Nagsasalaysay?
NILAGDAAN SA HARAP NINA:
(Unsigned) (Unsigned)
1. Cristina A. Lopez 2.
Luzviminda M. Barlis
ASSISTED BY:
(Signed)
ATTY. CONFESSOR
SANSANO
SUBSCRIBED AND SWORN to before me this 30[th] day of
January 1990 at Quezon City, Philippines.
(Signed)
ASST. CITY PROSECUTORDr. Dario L. Gajardo, Medico-Legal
Officer of the PC/INP Crime Laboratory Service at Camp
Crame, conducted an autopsy on the body of Honorina
Ballerda. He testified that he found thirty-four stab wounds
caused by a pointed instrument, such as an icepick, located
mainly on the neck and front of the body. Sixteen of these
stab wounds were fatal.
7

Wilma Ballerda testified that in connection with the untimely
death of her mother, she spent P15,900.00 for the funeral
services, P3,900.00 for burial services, which excluded that
for the lot, and P3,725.00 for the mass, flowers, and food
during the wake. She hired the services of a lawyer for
P20,000.00.
8

The witnesses for the defense were accused Jonathan Barlis,
Cristina Lopez, Rizaldy Reyes, Hernando Angeles, Joselito
Gatdula, and the accused's uncle, Pfc. Patrocinio Mercado.
The accused's testimony is summarized by the trial court as
follows:
That on January 20, 1990 at around 9 o'clock in the
morning, accused Barlis was on his way to Grotto, San Jose,
Bulacan when he met his co-accused Ferdinand Lopez and
Eduardo Nining; that the two requested him to accompany
them to Ballerda's place in order to pawn their VHS to the
latter; that he accompanied them but immediately went to
Bulacan after talking to Honorina Ballerda at the latter's store
and when said Ballerda allowed the two to enter her house;
that he did not stay long at Grotto, San Jose, Bulacan and
went back to Novaliches; that he learned, upon reaching
home, that police authorities are looking for him; that since
he does not know what to do, he went back to Bulacan and
stayed there until January 30, 1990 when police officers, one
of whom is his uncle (Pfc. Patrocinio Mercado), went thereat
and fetch him to act as a witness against Ferdinand Lopez and
Eduardo Nining; that he actually aided police operatives in
tracking them although said Lopez was able to escape from
the police officers; that he was brought to the Quezon City
Police Station where he was investigated and told to sign a
paper (his salaysay), that he signed the same since Pfc.
Mariano Rivera was in a hurry to get a lawyer; that they
(accused Barlis and Pfc. Rivera) went to the office of a lawyer
who signed the document without asking any question from
him; that he was brought back to the police station where he
was detained.
9

Cristina Lopez, Jonathan's girlfriend, testified that she and
Jonathan's mother accompanied Jonathan when he
surrendered to the police in Quezon City and when he was
brought to the Office of the IBP-Quezon City Chapter.
However, she and Jonathan's mother were not allowed to go
inside the said Office.
10

Rizaldy Reyes, Hernando Angeles, and Joselito Gatdula tried
to corroborate Jonathan's alibi. Rizaldy claimed that he and
Jonathan were on board the same passenger jeepney when
he went to work at about 9:00 a.m. on 20 January 1990.
Jonathan told him that he was going to Grotto, San Jose,
Bulacan.
11
Hernando declared that he only saw Ferdinand
Lopez and Eduardo Nining coming out from the house of
Honorina Ballerda at about 9:00 a.m. to 9:20 a.m. of the said
date.
12
Joselito testified that he and Jonathan were on the
same passenger jeepney bound for Grotto, San Jose, Bulacan,
before 9:30 a.m. of that date.
13

Pfc. Patrocinio Mercado, Jonathan's uncle and a member of
the Quezon City Police, testified that on 30 January 1990, he
and Jonathan's mother went to Grotto, San Jose, Bulacan, to
see Jonathan. The latter told him of his intention to surrender
because he is innocent. They brought Jonathan to the Quezon
City Police Station where an investigator helped Jonathan to
be a witness in the case. He was not with Jonathan inside the
investigation room. After the investigation, he discovered
that Jonathan had executed a sworn statement and had been
included in the charge. He asked Jonathan if he was assisted
by a lawyer when he executed the sworn statement to which
Jonathan answered that he was.
14

On 4 April 1991, the trial court promulgated its decision
15

finding Jonathan Barlis guilty beyond reasonable doubt of the
crime of robbery with homicide and sentencing him "to suffer
the penalty of RECLUSION PERPETUA . . . to pay the heirs of
Honorina Ballerda the amount of Fifty Thousand Pesos
(P50,000.00) by virtue of the former's death and Ten
Thousand Pesos (P10,000.00) by way of moral damages" and
to restore to the victim's heirs one lady's gold necklace, one
Seiko wrist watch, one diamond stone, or their equivalent
value of P4,300.00 if restoration cannot be done, and cash
worth P3,000.00.
16

The trial court found that there was a conspiracy among
Jonathan and his companions in the commission of the crime
and convicted the former on the basis of the circumstantial
evidence and his extrajudicial confession, thus:

While the prosecution did not show any real
evidence to establish the killing of the victim and the taking of
personal properties at her residence, nonetheless, the
attending circumstances of the instant case are indicative of
accused['s] participation in the commission of the offense
charge[d]. There is no dispute that movables were lost and
the victim died of stab wounds on January 20, 1990. Such
occurrence transpired after accused went inside the house of
Ballerda, gagged their victim and tied Adela Argate. These
facts are conclusive upon him since he did not advance any
denial. His defense of alibi cannot prevail over his positive
identification by Argate.
The acts of gagging their victims, tying and carrying
Argate to the bathroom, and increasing the volume of the
radio manifest a clear case of conspiracy. For this purpose,
the Honorable Supreme Court held that:
Direct proof is not essential to establish conspiracy.
Since by its nature, conspiracy is planned in utmost secrecy, it
can rarely be proved by direct evidence. Consequently, the
presence and concurrence of minds which is involved in
conspiracy, may be inferred from proof of facts and
circumstances which, taken together, apparently indicate
that they are merely parts of some complete whole.
If it is proved that two or more persons aimed by
their acts towards the accomplishment of the same unlawful
object, each doing a part so that their acts, though apparently
independent were in fact connected and cooperative,
indicating closeness of personal association and concurrence
of sentiment, a conspiracy may be inferred though no actual
meeting among them to concert means is proved. That would
be termed as implied conspiracy. (Orodio v. CA, September
13, 1988, GR 57519).
Accused likewise questions the admissibility of his
"salaysay" by proving that the same was executed by him
without the assistance of counsel. Testimonies to this effect
lack credence. His uncle and his own witness, Pfc. Patrocinio
Mercado, admitted that such "salaysay" was taken regularly
and with the constitutional requisite of assistance [of]
counsel. While the constitutional presumption of innocence
should be upheld, such presumption cannot rise above the
regularity in the performance of police duties and lawyer's
function when the latter evidence is strong.
17

Jonathan Barlis (hereinafter appellant) appealed the
judgment to this Court. In his brief, he contends that the trial
court erred:
1. . . . IN NOT CONSIDERING THE DEFENSE OF ALIBI
RAISED BY THE ACCUSED.
2. . . . IN GIVING CREDENCE TO THE STATEMENT
(EXHIBIT "B") OF THE ACCUSED.
3. . . . IN ADJUDGING THE ACCUSED AS CIVILLY
LIABLE.
4. . . . IN CONVICTING THE ACCUSED JONATHAN
BARLIS OF THE CRIME OF ROBBERY WITH HOMICIDE.
18

We shall take up these assigned errors seriatim.
In the first assignment of error, the appellant asserts that the
trial court erred in rejecting his strongly corroborated alibi
and in convicting him on the basis of the weak circumstantial
evidence of the prosecution. He argues that even the trial
court recognized the weakness of the prosecution's evidence
when it stated in its decision that "[w]hile the prosecution did
not show any real evidence to establish the killing of the
victim and the taking of personal properties at her residence,
nonetheless, the attending circumstances of the instant case
are indicative of accused['s] participation in the commission
of the offense charge[d]." He also assails the credibility of
Adela Argate whose statements on the identity of the
malefactors before the police which investigated the crime in
the afternoon of 20 January 1990 (Exhibit "2")
19
were
inconsistent with her declaration given in court and who
could not have seen the malefactors because, as she testified,
the house was dark. Finally, he attacks the "seeming
suppression of evidence by the prosecution when it did not
present in evidence Exhibit "2."
The appellant's defense of alibi was rightly rejected by the
trial court not only because it was belied by his sworn
statement (Exhibit "B") but also because he was positively
identified by Adela Argate. The appellant admitted in his
sworn statement that he was one of three persons who
entered the house of Honorina with the intention of robbing
her although he denied that he killed
her;
20
that after the victim was killed, he searched the house
for things which he could take with him but was unsuccessful;
however, his companion, Ferdie, took three men's watches.
He also admitted that they divided the loot among
themselves and each of them got P400.00 in cash.
21

Adela Argate positively identified the appellant as one of the
three persons who entered the house of the victim. Contrary
to the appellant's claim, there was sufficient illumination
inside the house when they entered it. The lights were turned
off by the appellant and his companions only after they
consummated the crime and before they left the house.
22

She also identified him as one of two persons who pushed
("ginigitgit") the victim. We have ruled time and again that
alibi is a weak defense and cannot prevail over the positive
identification of the accused.
23

The appellant's claim that the prosecution suppressed
evidence is without merit. It was not necessary for the
prosecution to present Adela Argate's statement before the
police authorities since Adela Argate was herself presented as
a witness and the prosecution had explained that it opted not
to present such statement because the same was not sworn
to before any officer authorized to administer oaths.
24

Moreover, the defense had access to a copy of such
statement and even marked it as its Exhibit "2." The
presumption that evidence willfully suppressed would be
adverse if produced
25
does not apply where the evidence is
available to the accused.
26
Furthermore, the defense did not
comply with Section 13, Rule 132 of the Rules of Court
27
in
attempting to impeach Adela's credibility by evidence of a
prior inconsistent statement (Exhibit "2"). In this case, while
Adela was cross-examined by the counsel for the appellant,
she was never confronted regarding her alleged inconsistent
statements in
Exhibit "2".
In his second assignment of error, the appellant contends
that the trial court erred in giving credence to his sworn
statement or "salaysay" (Exhibit "B") which was taken
without the assistance of a lawyer in violation of Section
12(1), Article 3 of the 1987 Constitution. He alleges that he
surrendered to the police only to help them find the real
culprits, that Pfc. Rivera misled him into signing the sworn
statement by telling him not to worry, and that he was
brought to the Office of the IBP-Quezon City Chapter where
Atty. Sansano signed the document without conferring with
him. Furthermore, he questions the fact that the names of his
girlfriend, Cristina Lopez, and his mother, Luzviminda Barlis,
appear as witnesses in Exhibit "B-1" although they had not
signed it.
We are not persuaded. It was the appellant's uncle who
surrendered him to Pfc. Rivera, his uncle's colleague. Before
he was questioned, he was duly informed and advised in
Tagalog, a language he speaks and understands, of his
constitutional rights to remain silent and to have a competent
and independent counsel, preferably of his own choice.
28
He
voluntarily agreed to be assisted by no less than the
Chairman of the Legal Aid Assistance Office of the IBP-Quezon
City Chapter, Atty. Confesor Sansano. The latter affirmed in
court that he assisted the appellant during the investigation.
A lawyer is an officer of the court and upon his shoulders lies
the responsibility to see to it that protection has been
accorded the rights of the accused and that no injustice to
him has been committed.
29
He has in his favor the
presumption of regularity in the performance of his duties.
This presumption was not rebutted in this case. With the
presence of Atty. Sansano, we believe that the rights of the
appellant were duly protected.
The failure of the mother and the girlfriend of the appellant
to sign as witnesses to the taking of his sworn statement is of
no moment for the Constitution does not require the
presence of witnesses during custodial investigation. What is
required is the assistance of counsel, which can even be
waived. As held in People vs. Layuso,
30
what is sought to be
protected by the Constitution is the compulsory disclosure of
incriminating facts. The right is guaranteed merely to
preclude the slightest coercion as would lead the accused to
admit something false, not to prevent him from freely and
voluntarily telling the truth.
The last two assigned errors, being interrelated, shall be
discussed jointly.
The information alleged that the appellant took one ladies'
gold necklace, one ladies' Seiko watch, one diamond stone
worth P800.00, cash in the amount of P3,000.00, and
assorted pieces of jewelry of undetermined value, "all
belonging to the victim." However, the only evidence of such
taking is the appellant's sworn statement wherein he
admitted that his companions took three men's watches and
about P1,200.00 in cash which they divided among
themselves. Adela Argate, for her part, testified that she lost
one ladies' watch and less than P100.00 in cash. The Office of
the Solicitor General in the Brief for the Appellee agrees with
the appellant that it was an error for the trial court to order
the restitution of (a) one ladies' gold necklace, (b) one Seiko
wrist watch, (c) one diamond stone and (d) cash in the
amount of P3,000.00, since there was no proof of loss
thereof. It maintains, however, that it was proved that
witness Adela Argate lost her wrist watch and cash of less
than P100.00, which fact was not disputed by the appellant;
hence, "the element of unlawful taking of property was
amply established."
31

To sustain a conviction for the crime of robbery with
homicide, it is necessary that the robbery itself be proved as
conclusively as any other essential element of the crime.
32

The taking with intent to gain of personal property belonging
to another, by means of violence against or intimidation of
any person, or using force upon things are the essential
elements of robbery.
33
There is robbery with homicide when
by reason or on occasion of a robbery with the use of
violence against or intimidation of person, the crime of
homicide shall have been committed.
34

As shown above, the only evidence of the taking of the
personal property of the victim is the extrajudicial confession
of the appellant. Under Section 3, Rule 133 of the Rules of
Court, "an extrajudicial confession made by an accused shall
not be sufficient ground for conviction, unless corroborated
by evidence of corpus delicti." Corpus delicti is the body
(material substance) upon which a crime has been
committed, e.g., the corpse of a murdered man or the
charred remains of a house burned down. In a derivative
sense, it means the substantial fact that a crime was
committed.
35
It is made up of two elements:
(a) that a certain result has been proved, for example, a man
has died or a building has been burned; and (b) that some
person is criminally responsible for the act.
36
Section 3, Rule
133 does not mean that every element of the crime charged
must be clearly established by independent evidence apart
from the confession. It means merely that there should be
some evidence tending to show the commission of the crime
apart from the confession. Otherwise, utility of the
confession as a species of proof would vanish if it were
necessary, in addition to the confession, to adduce other
evidence sufficient to justify conviction independently of such
confession.
37
Otherwise stated, the other evidence need not,
independently of the confession, establish the corpus delicti
beyond a reasonable doubt.
38

The prosecution failed to corroborate the extrajudicial
confession of the appellant on the robbery with evidence of
corpus delicti. In short, the robbery was not conclusively
proved. The instant case should be distinguished from People
vs. Mones.
39
In Mones, the four accused who were charged
with robbery with homicide executed separate confessions of
the crime charged. Their confessions were also corroborated
by the testimony of a witness. We held therein:
[W]here the accusation of robbery fails, but
multiple homicide or murder is proved, the
accused must be sentenced for the several
separate offenses of homicide or murder
(U.S. vs. Lahoylahoy and Madanlog, 38 Phil.,
330); and in this case, if the proof should be
held insufficient as to the robbery, the
result would be, under the Revised Penal
Code, that each of the accused would be
sentenced for the four murders committed
by them. In view of this fact we are
constrained to sustain the conviction for
robbery with homicide, upon the
concurrent confessions of each of the four
accused to the effect that robbery was the
purpose of the crime and that P100 in
money were taken from the trunk of
Manuel Mico. As to the moral basis of this
fact we entertain no doubt whatever,
although there is no independent evidence,
apart from the confessions that robbery
was committed. In thus sustaining the trial
court in its finding of robbery we do not
wish to be understood as declaring that this
appreciation could prevail if the prosecution
consisted of a charge of robbery only, or if
the conclusion reached were in fact
unfavorable to the accused.
40

In Mones, the conviction of the four accused for robbery with
homicide is sustainable under the doctrine of interlocking
confessions: "extra-judicial confessions independently made
without collusion which are identical with each other in their
essential details and are corroborated by other evidence on
record are admissible, as circumstantial evidence, against the
person implicated to show the probability of the latter's
actual participation in the commission of the crime."
41

Clearly, the doctrine is inapplicable here for we only have the
solitary confession of the appellant.
The Office of the Solicitor General, as earlier observed,
concedes that there was no proof of robbery. It argues,
however, that such is not fatal because the unrebutted fact
remains that Adela Argate lost a wrist watch and cash of less
than P100.00 on the occasion of the robbery. We cannot
sustain this proposition because of the rule enumerated in
United States vs. Lahoylahoy,
42
to wit:
To permit a defendant to be convicted upon
a charge of robbing one person when the
proof shows that he robbed an entirely
different person, when the first was not
present, is violative of the rudimentary
principles of pleading; and in addition, is
subject to the criticism that the defendant
is thereby placed in a position where he
could not be protected from a future
prosecution by a plea of former conviction
or acquittal. If we should convict or acquit
these defendants to-day of the robbery
which is alleged to have been committed
upon the property of Roman Estriba, it is
perfectly clear that they could be
prosecuted tomorrow for robbery
committed upon the property of Juana; and
the plea of former jeopardy would be of no
avail.
The death of the victim has been sufficiently established by
evidence independent of the appellant's extrajudicial
confession, namely, the unrebutted testimonies of
prosecution witnesses Adela Argate, Dr. Dario Gajardo, and
Wilma Ballerda.
Finally, we agree with the trial court that the conspiracy
among the appellant and his two companions was proved
beyond reasonable doubt by circumstantial evidence.
Since the alleged robbery was not conclusively proved in this
case, the appellant could only be convicted of homicide under
Article 249 of the Revised Penal Code. The penalty prescribed
therefor is reclusion temporal.
The aggravating circumstance of dwelling
43
was proved in
this case and may be appreciated against the appellant. This
is offset, however, by the mitigating circumstance of
voluntary surrender.
44
The applicable period of reclusion
temporal is therefore the medium period or fourteen (14)
years, eight (8) months and one (1) day to seventeen (17)
years and four (4) months.
45
Since he is entitled to the
benefits of the Indeterminate Sentence Law,
46
the penalty to
be imposed upon him shall be one whose minimum shall be
within the range of prision mayor and whose maximum shall
be within the range of the prescribed penalty taking into
account the modifying circumstances.
47

The award of moral damages in the amount of P10,000.00 is
proper under Article 2206(3) of the Civil Code considering
that Wilma Ballerda, the only child of the victim, testified that
she was shocked and could not sleep for several nights when
she learned of her mother's death.
48

WHEREFORE, the appealed decision is MODIFIED as follows:
appellant JONATHAN BARLIS Y MERCADO is hereby found
guilty beyond reasonable doubt of the crime of Homicide
under Article 249 of the Revised Penal Code, and, applying
the Indeterminate Sentence Law, is hereby sentenced to
suffer an indeterminate penalty ranging from ten (10) years
of prision mayor as minimum to sixteen (16) years of
reclusion temporal as maximum. The appellant is ordered to
pay the heirs of Honorina Ballerda the sum of P50,000.00 as
indemnity and P10,000.00 as moral damages. Costs against
the appellant.
SO ORDERED.

G.R. No. 159734 November 29, 2006
ROSARIO V. ASTUDILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x----------------------------------------x
G.R. No. 159745 November 29, 2006
FILIPINA M. ORELLANA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
Petitioners Rosario "Baby" Astudillo (Rosario) and Filipina
"Lina" Orellana (Filipina) via separate petitions for review on
certiorari seek a review of the Decision
1
and the Resolution
2

of the
Court of Appeals affirming with modification that of the
Regional Trial Court of Quezon City, Branch 78
3
(the trial
court) finding them guilty of Qualified Theft and denying their
Motions for Reconsideration, respectively.
On complaint of Western Marketing Corporation (Western),
petitioners were collectively charged with Qualified Theft,
along with Flormarie Robel (Flormarie) and Roberto Benitez
(Benitez), in Criminal Case No. Q-96-67827, under an
Information dated September 9, 1996 reading:
The undersigned accuses FLORMARIE CALAJATE ROBEL,
ROBERTO F. BENITEZ, ROSARIO ASTUDILLO a.k.a. "Baby" and
FILIPINA ORELLANA Y MACARAEG of the crime of QUALIFIED
THEFT as follows:
That during the period comprised from January 1996 to
February 1996, the above-named accused, being then
employed as relieving cashier/service-in-charge (Flormarie
Calajate Robel), supervisor/floor manager (Roberto F.
Benitez[)], sales clerks (Rosario Astudillo a.k.a. "Baby" and
Filipina Orellana y Macaraeg) at the WESTERN MARKETING
CORPORATION, represented by LILY CHAN ONG, and as such
had free access to the company premises, materials, supplies
and items store[d] thereat, conspiring, confederating
together and mutually helping one another, with grave
abuse of confidence and intent of gain, and without the
consent of the owner thereof, did, then and there wilfully,
unlawfully and feloniously take, steal and carry away two (2)
booklets of Sales Invoices Nos. from 128351 to 128400 of the
said corporation and thereafter use the said invoices in the
preparation of fictitious sales and withdrawals of
merchandise with the total value of P797,984.00 Philippine
Currency, belonging to the said WESTERN MARKETING
CORPORATION, to its damage and prejudice.
CONTRARY TO LAW.
4
(Emphasis supplied)
Additionally, petitioners, Benitez and Norberto "Carlo" Javier
(Javier) were individually charged also with Qualified Theft in
four (4) separate Informations all dated September 9, 1996.
The Information indicting petitioner Rosario, docketed as
Criminal Case Nos. Q-96-67829, and that indicting petitioner
Filipina, docketed as Q-96-67830, respectively read:
The undersigned accuses ROSARIO ASTUDILLO a.k.a. "Baby"
of the crime of QUALIFIED THEFT as follows:
That on or about the period from May 1, 1994 to February 16,
1996, in Quezon City, Philippines, the above-named accused,
being then employed as sales representative/clerk at the
WESTERN MARKETING CORPORATION (P. Tuazon Branch),
represented by LILY CHAN ONG, and as such had free access
to the company cash sales, with grave abuse of confidence
and intent of gain, and without the consent of the owner
thereof, did, then and there, wilfully, unlawfully and
feloniously take, steal and carry away the excess sum/amount
between the tag price and discounts price in the sum of
P12,665.00, belonging to the said WESTERN MARKETING
CORPORATION, to its damage and prejudice in the amount
aforementioned.
CONTRARY TO LAW.
x x x
The undersigned accuses FILIPINA ORELLANA Y MACARAEG of
the crime of QUALIFIED THEFT, committed as follows:
That on or about the period from May 1, 1994 to January 27,
1996, in Quezon City, Philippines, the above-named accused,
being then employed as Sales clerk at the WESTERN
MARKETING CORPORATION, represented by LILY CHAN ONG,
and as such had free access to the company cash sales, with
grave abuse of confidence and intent of gain, and without the
consent of the owner thereof, did,
then and there, wilfully, unlawfully and feloniously take, steal
and carry away the excess sum/amount between the tag
price and discount price of each and every items sold by her
to company customers, in the sum of P4,755.00, belonging to
the said WESTERN MARKETING CORPORATION, to its damage
and prejudice in the amount aforementioned.
CONTRARY TO LAW.
5

Petitioners, Benitez and Javier, with the assistance of their
respective counsel, pleaded not guilty during arraignment.
6

Flormarie has remained at large.
By Order of December 10, 1997, Criminal Case No. Q-96-
67828, the case against Javier, was dismissed on account of
the desistance of the private complainant.
7
The remaining
cases against petitioners and Benitez were consolidated for
joint trial.
By Decision of May 28, 1998, the trial court found the
accused-herein petitioners and Benitez guilty beyond
reasonable doubt of Qualified Theft and were accordingly
sentenced as follows:
IN CRIMINAL CASE NO. Q-96-67827
Accused Roberto F. Benitez, Rosario Astudillo a.k.a. "Baby",
and Filipina Orellana y Macaraeg shall each suffer
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of
reclusion temporal, and to pay the amount of P797,984.00,
jointly and severally for their civil liability;
IN CRIMINAL CASE NO. Q-96-67829
Accused Rosario Astudillo a.k.a. "Baby", shall suffer
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of
reclusion temporal, and to pay the amount of P12,665.00 for
her civil liability;
IN CRIMINAL CASE NO. Q-96-67830
Accused Filipina Orellana y Macaraeg, shall suffer
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as
minimum, to FOURTEEN (14) YEARS, as maximum, of
reclusion temporal, and to pay the sum of P4,755.00 for her
civil liability; and
IN CRIMINAL CASE NO. Q-96-67831
Accused Roberto F. Benitez, shall suffer imprisonment of
TWELVE (12) YEARS and ONE (1) DAY, as minimum, to
FOURTEEN (14) YEARS, as maximum, of reclusion temporal,
and to pay the amount of P11,079.00 for his civil liability.
The penalties imposed on all the accused are quite harsh, but
as the maxim goes, "Dura Lex Sed Lex", the Court could not
impose otherwise.
SO ORDERED.
8
(Emphasis in the original; underscoring
supplied)
Petitioners and Benitez elevated their cases on appeal. The
Court of Appeals affirmed the trial courts judgment with
modification as to the penalties imposed, thus:
WHEREFORE, the decision dated May 28, 1998 of the
Regional Trial Court of Quezon City, Branch 78 is AFFIRMED
with MODIFICATION.
1. In Criminal Case No. Q-96-67827, appellants
Roberto Benitez, Rosario Astudillo and Filipina
Orellana are found guilty beyond reasonable doubt
of qualified theft and are hereby sentenced to suffer
the penalty ranging from 10 years and 1 day of
prision mayor in its maximum period to 15 years of
reclusion temporal as maximum, and to pay to the
offended party the amount of P797,984.00, jointly
and severally, as reparation for the unrecovered
stolen merchandise;
2. In Criminal Case No. Q-96-67829, appellant
Rosario Astudillo is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 10 years and 1 day of
prision mayor in its maximum period as minimum to
14 years, 8 months and 1 day of reclusion temporal
in its medium period as maximum, and to pay to the
offended party amount of P12,665.00 as reparation
for the stolen goods.
3. In Criminal Case No. Q-96-67830, appellant
Filipina Orellana is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 4 years, 2 months and 1
day of prision correccional in its maximum period as
minimum to 8 years and 1 day of prision mayor in its
medium period as maximum and to pay to the
offended party the amount of P4,755.00 as
reparation for the stolen property;
4. In Criminal Case No. Q-96-67831, appellant
Roberto Benitez is found guilty beyond reasonable
doubt of qualified theft and is sentenced to suffer
imprisonment ranging from 6 years and 1 day of
prision mayor in its minimum period as minimum to
10 years and 1 day of prision mayor in its maximum
period as maximum and to pay to the offended party
the amount of P11,079.00 as reparation for the
stolen goods.
SO ORDERED.
9
(Emphasis in the original; underscoring
supplied)
After petitioners and Benitezs respective Motions for
Reconsideration were denied by the Court of Appeals,
petitioners filed these separate petitions for review which
were, on motion of the Office of the Solicitor General,
ordered consolidated.
10

In her petition, Rosario proffers the following assignment of
errors:
THE COURT A QUO GRIEVOUSLY ERRED WHEN IT
CONSIDERED AN APOLOGY FOR BREACH OF
PROCEDURE AS AN ADMISSION OF A CRIME.
THE COURT A QUO ERRED WHEN IT DEPARTED
[FROM] THE NORMAL COURSE OF JUDICIAL
PROCEEDING AND CONVICTED PETITIONER OF THE
OFFENSE OF THEFT WITHOUT THE ESSENTIAL
ELEMENT OF UNLAWFUL TAKING.
THE COURT OF A QUO (sic) GRIEVOUSLY ERRED
WHEN IT ABUSED ITS DISCRETION TO ARRIVE AT
CONCLUSIONS OF FACTS BY INDECENTLY
CONSIDERING AND DISTORTING EVIDENCE TO
CONFORM TO ITS FLAWED CONCLUSION.
11

(Underscoring supplied)
On her part, Filipina raises the following issues:
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THE DECISION OF THE
REGIONAL TRIAL COURT CONVICTING THE
PETITIONER FILIPINA ORELLANA Y MACARAEG OF
THE CRIME CHARGED DESPITE INSUFFICIENCY OF
EVIDENCE
WHETHER OR NOT AN EXTRA-JUDICIAL ADMISSION
OBTAINED THROUGH TRICKERY AND SCHEME
WITHOUT THE BENEFIT AND ASSISTANCE OF
COUNSEL IS A SUFFICIENT GROUND TO CONVICT AN
ACCUSED
WHETHER OR NOT CONSPIRACY MAY BE PROVED
SIMPLY ON THE GROUND THAT ALL ACCUSED ARE
CO-EMPLOYEES AND WORKING IN ONE COMPANY
12

(Underscoring supplied)
From the evidence for the prosecution, the following version
is gathered:
Petitioners were hired by Western, a chain of appliance
stores, as salespersons at its branch at P. Tuazon Boulevard in
Cubao, Quezon City. Benitez and Flormarie were hired as
floor manager and service-in-charge/cashier-reliever,
respectively, at the same branch of Western.
13

On February 21, 1996, in the course of preparing the January
monthly sales report of the P. Tuason branch of Western,
Branch Accountant Marlon Camilo (Camilo) noticed that the
computer printout of the monthly sales report revealed a
belated entry for Cash Sales Invoice No. 128366. Upon
verification from Westerns head office, Camilo learned that
the branch received the booklet containing 50 cash sales
invoices to which Invoice No. 128366 formed part.
Camilo then confirmed that the booklet of sales invoices
bearing numbers 128351 up to 128400 was missing. And he
noted that the daily cash collection report did not reflect any
remittance of payments from the transactions covered by the
said invoices.
Some cash sales invoices were later recovered. From
recovered Invoice No. 128366, Camilo found out that
Flormarie was the one who filled it up and received the
payment reflected therein.
From recovered Invoice Nos. 128358 and 128375, Camilo
found out that the goods covered thereby were missing.
Concluding that the transactions under the said invoices were
made but no payment was remitted to Western, Camilo
reported the matter to Ma. Aurora Borja (Aurora), the branch
assistant manager.
Benitez soon approached Camilo and requested him not to
report the matter to the management, he cautioning that
many would be involved.
Aurora and Camilo later met with Benitez, Filipina, cashiers
Rita Lorenzo (Rita) and Norma Ricafort (Norma) during which
Benitez and Filipina pleaded with Camilo not to report the
matter to the management. Flormarie, who called on Camilo
by telephone, made a similar plea as she admitted to stealing
the missing booklet of invoices, she explaining that her father
was sick and had to undergo medical operation, and offering
to pay for the goods covered thereby.
14

In the meantime, Flormarie had gone absent without leave.
Aurora eventually reported the case of the missing invoices
and the shortage of cash sales collection to Westerns branch
manager Lily Chan Ong (Lily).
15

In a subsequent meeting with Lily, Filipina admitted having
brought home some appliances while Benitez gave a
handwritten statement reading:
16

Ako si Roberto F. Benitez ay humihingi po ako ng tawad kay
Mrs. Lily Ong at Western Marketing Corp. Ang mga kasalanan
ako po ay:
1) Ang pagkuha ng Promo na dapat ay para sa
Customer.
2) Ang paggamit ng gift check na para rin sa
Customer ang kinukuha ko at ako ang gumagamit.
3) Ang pagamit na rin sa Pera na tinatawag na Short-
Over ay amin ding ginagawa. Example nagbayad ang
Customer ng 9000 and C.P. 8,900 and 9,000 ay
nasulat sa original na INV.
4) Ang pagkuha na rin ng mga Product tulad ng
sumusunod, na ako nagplano at si Ate Lina.
Kay Ate Lolit Tiffin Carrier
Cookware Set 7 pcs.
Ate Lina Cookware Set 7 pcs.
Norma Cookware Set 7 pcs. Airpot Lemon
Robert National Elec. Stove HNK-211 Rice Bowl
Ito lahat ay nilabas namin ng linggo 02-18-96 ng gabi. Ako po
ay nangangako na hindi na ito uulitin ang lahat ng mga
kasalanan sa Western ay kay Mrs. Lily Ong at Pinapangako ko
po na Sumpa man kasama ang pamilya at salamat din po
dahil ako ay pinatawad nila at binigyan pa ng isang
pagkakataon. Maraming maraming salamat po.
17
(Emphasis
and underscoring supplied)
In a still subsequent meeting with Lily, Filipina made a written
statement in the formers presence reading:
Ako po si Lina M. Orellana na nangangako kay Ate Lily na
hinding-hindi ko na uulitin iyong naglalabas ng mga items
tulad ng cookware set at casserole na ang mga kasama ko po
rito ay sina Lolit, Norma, Robert na isinagawa namin. Na kami
po si Robert ang nagsabi kay Lolit na maglabas ng stock pero
bago po namin ginagawa iyon nagsabi po kami kay Lolit na
sumagot naman ng ng oo pero kami po ni Robert and
nagkumbinsi sa dalawa. Kung mauulit pa ho ito kung anuman
po ang gusto ni Mam Lily na gawin sa akin ay lubos ko pong
tatanggapin.
18
(Underscoring supplied)
Also in a meeting with Lily, Rosario, who was earlier
implicated by Flormaries husband in his telephone
conversation with Aurora,
19
wrote:
Mam Lily,
Sana ho Ate Lily patawarin ninyo ako sa nagawa kong
kasalanan, regarding sa "Short-over". Siguro ho nagawa ko
lang ho yon sa pakikisama sa kanila, sa mga kasamahan ko
dito sa Nuestra, alam ko ho na mali yon kaya pinagsisisihan
ko ho yon. Sana ho mapatawad ninyo ako sa nagawa kong
kasalan.
Yun pong tungkol sa kaso ni Marie, wala ho akong alam don.
Kumare ko nga ho sya pero yung pagnanakaw niyang ginawa
wala akong kinalaman don. Kahit ho siguro magkautang-
utang ako hindi ko magagawa yon.
Inuulit ko ho, sana ho mapatawad ninyo uli ako sa nagawa
kong kasalanan at pinapangako ko ho na hinding-hindi ko na
uulitin.
Maraming salamat ho,
(Sgd.)Baby Astudillo
P.S. yun ho palang perang na-oover naming, pinaghahatian
po namin nila Rita at ni Marie.
20
(Underscoring supplied)
Still in a separate meeting with Lily and her siblings on one
hand, and Flormarie and her husband on the other, Flormarie
wrote what she knew of the incident as follows:
Ito ang nalalaman ko kung paanong nangyari ito sa loob ng
tindahan ng Western Mktg. P. Tuazon Branch.
*SHORT-OVER
Ang tag price, kung ang customer ay hindi tumawad,
binabago na lang ang presyo sa duplicate copy and then
kinukuha na lang sa cashier ang pera tapos naghahati-hati na
lang si robert, baby, lina, lolit, Rita at Marie, Norma, Fe.
x x x
*INVOICE
Ito ay itinuro sa akin ni Kuya Robert, kukunin ko ang invoice at
pagkatapos binigyan niya ako ng (3 resibo series) at hindi ko
na po alam kung anong ginawa na niya sa invoice.
Ang paraan magreresibo ako tatatakan ko ng paid kasama
kung sino ang taong maglalabas ng unit tapos ibebenta ko na
yong unit yung pera kinukuha ko na bibigyan ko lang siya ng
kahit magkanong amount kung sino yong taong inutusan ko.
21

(Underscoring supplied)
Flormarie, in the company of her sister Delma and Lily,
subsequently appeared before a notary public to execute a
similar statement reading:
x x x x
2. Ako ngayon ay kusang loob na lumapit sa Western upang
humingi ng kapatawaran sa aking mga nagawa at upang
makipagkasundo sa isang maayos na pagbabayad sa mga
halagang aking nakuha sa Western at mahalaga sa lahat,
upang isiwalat ang mga taong kasangkot sa katiwaliang ito at
mga paraan ng paggawa nito.
3. Halos lahat ng mga kawani ng tindahan ay kasangkot sa
mga sumusunod na katiwalian:
3.1. Short-Over Ito ay ang pagtatala ng mas mababang
halaga ng paninda sa mga "duplicate copies" ng resibo kapag
ang kustomer ay hindi tumawad sa "tag price" at nagbayad ng
"cash". Ang sobrang halaga ay pinaghahatian namin nina
ROBERT BENITEZ ("Robert"); ROSARIO ALTUDILLO ("Baby");
FILIPINA ORELLANA ("Lina"); LOLIT BORJA ("Lolit"); RITA
LORENZO ("Rita"); NORMA RICAFORT ("Norma") at FE
CABIGAN ("Fe").
x x x x
3.3. INVOICING Sa pamamagitan ng mga resibong na may
tatak na "paid" na ibinibigay ni Robert sa aking nailalabas ko
ang mga paninda na akin namang naibebenta.
22

x x x x (Emphasis and underscoring supplied)
Flormarie and her sister, together with Lily, later executed a
statement before Cubao SPO1 Jose Gil Gregorio, reading:
TANONG: Ayon kay MARLON CAMILO, Western Marketing
Corp Branch Accountant nadiskubre niya ang pagkawala ng
isang booklet ng Sales Cash Invoice (50pcs.) na may
numerong 128351 to 128400 nitong mga nakaraang araw
may kinalaman ka ba sa nasabing pangyayari?
SAGOT: Opo.
T : Kung mayroon kang kinalaman sa nasabing pangyayari ito
ba ay kusang loob mong ginawa?
S : Itinuro lang po ito sa akin.
T : Ano ang iyong ginawa?
S : Ako po ang kumuha noong nawawalang isang booklet ng
Cash Sales Invoice sa turo ni ROBERT BENITEZ na Sales
Supervisor sa Western Marketing Corp.
x x x x
T : Sa tatlong series ng Cash Sales Invoice na napunta sa iyo
ano ang iyong ginawa?
S : Ginamit ko po ito sa paglalabas ng mga items/unit sa
Western Marketing Corp.
x x x x
T : Sa maikling salaysay, ikuwento mo nga sa akin kung
papaano mo isinagawa ang iyong pagnanakaw sa pag-gamit
ng mga Cash Sales Invoice?
S : Ganito po ang ginawa ko, iniuwi ko sa aming bahay yung
tatlong series ng resibo na ibinigay sa akin ni ROBERT BENITEZ
at tinuruan po niya ako na sulatan ko yung mga resibo ng mga
items na gusto kong ilabas, at pagkatapos po ay ibinalik ko ito
sa Western Marketing Corp at binigay ko ito kay ROBERT
BENITEZ, at ang sabi niya sa akin ay siya na raw ang bahala na
magpalabas noong mga items na aking isinulat sa resibo.
x x x x
T : Bukod kay ROBERT BENITEZ may mga tao bang karamay sa
naganap na transaksiyon?
S : Mayroon po.
T : Sino-sino ito?
S : Sina LINA ORELLANA po, Sales Lady po, ROSARIO
ASTUDILLO, sales lady.
T : Sa iyong pagkakaalam, ano ang kanilang mga partisipasyon
na naganap na transaksiyon?
S : Si LINA ORELLANA po ang sales lady, at siya rin ang may
pirma doon sa resibo, at ganoon din po itong si ROSARIO
ASTUDILLO.
x x x x
T : Magkano naman ang ibinibigay sa iyo ni ROBERT BENITEZ
kapag nailabas ng yung mga items doon sa resibo na iyong
ginawa?
S : Hindi ko na po matandaan basta pinapartihan niya ako at
yung dalawang sales lady.
23
(Emphasis and underscoring
supplied)
In an inventory of stocks conducted at the branch office of
Western, several other appliances were found missing as
were unauthorized deductions from the cash collections.
24

The total missing merchandise was valued at P797,984.00 as
reflected in the inventory report.
25
And discrepancies
between the actual sales per cash sales invoice and the cash
remittance to the company in the sum of P34,376.00 for the
period from January 1994 to February 1996
26
were also
discovered, prompting Western to initiate the criminal
complaints for Qualified Theft.
Both petitioners raise as issue whether the employees extra-
judicial admissions taken before an employer in the course of
an administrative inquiry are admissible in a criminal case
filed against them.
Petitioners posit in the negative. They argue that as their
extra-judicial statements were taken without the assistance
of counsel, they are inadmissible in evidence, following
Section 12, Article III of the 1987 Constitution.
27

It bears noting, however, that when the prosecution formally
offered its evidence, petitioners failed to file any objection
thereto including their extra-judicial admissions.
28
At any
rate, this Court answers the issue in the affirmative. People v.
Ayson
29
is instructive:
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-
custody interrogation" being regarded as the commencement
of an adversary proceeding against the suspect.
He must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those
rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity
afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer or make a statement.
But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence
obtained as a result of interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in
self-incriminating statement without full warnings of
constitutional rights."
The rights above specified, to repeat, exist only in "custodial
interrogations," or "in-custody interrogation of accused
persons." And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in
any significant way."
30
(Emphasis and underscoring supplied)
Ayson adds:
The employee may, of course, refuse to submit any
statement at the investigation, that is his privilege. But if he
should opt to do so, in his defense to the accusation against
him, it would be absurd to reject his statements, whether at
the administrative investigation, or at a subsequent criminal
action brought against him, because he had not been
accorded, prior to his making and presenting them, his
"Miranda rights" (to silence and to counsel and to be
informed thereof, etc) which, to repeat, are relevant in
custodial investigations.
31

People v. Tin Lan Uy, Jr.
32
is similarly instructive:
Clearly, therefore, the rights enumerated by the
constitutional provision invoked by accused-appellant are not
available before government investigators enter the picture.
Thus we held in one case (People v. Ayson, [supra]) that
admissions made during the course of an administrative
investigation by Philippine Airlines do not come within the
purview of Section 12. The protective mantle of the
constitutional provision also does not extend to admissions or
confessions made to a private individual, or to a verbal
admission made to a radio announcer who was not part of
the investigation, or even to a mayor approached as a
personal confidante and not in his official capacity. (Emphasis
and underscoring supplied)
The Court of Appeals did not thus err in pronouncing that
petitioners were not under custodial investigation to call for
the presence of counsel of their own choice, hence, their
written incriminatory statements are admissible in evidence.
The extra-judicial confession
33
before the police of Flormarie
(who, as earlier stated, has remained at large) in which she
incriminated petitioners bears a different complexion,
however, as it was made under custodial investigation. When
she gave the statement, the investigation was no longer a
general inquiry into an unsolved crime but had begun to
focus on a particular suspect. The records show that Camilo
had priorly reported the thievery to the same police
authorities and identified Flormarie and Benitez as initial
suspects.
It is always incumbent upon the prosecution to prove at the
trial that prior to in-custody questioning, the confessant was
informed of his constitutional rights. The presumption of
regularity of official acts does not prevail over the
constitutional presumption of innocence. Hence, in the
absence of proof that the arresting officers complied with
these constitutional safeguards, extrajudicial statements,
whether inculpatory or exculpatory, made during custodial
investigation are inadmissible and cannot be considered in
the adjudication of a case. In other words, confessions and
admissions in violation of Section 12 (1), Article III of the
Constitution are inadmissible in evidence against the
declarant and more so against third persons. This is so even
if such statements are gospel truth and voluntarily given.
34

(Emphasis and underscoring supplied)
Petitioners at all events argue that their written statements
were obtained through deceit, promise, trickery and scheme,
they claiming that Lily dictated to them their contents. There
is nothing on record, however, buttressing petitioners claim
other than their self-serving assertion. The presumption that
no person of normal mind would deliberately and knowingly
confess to a crime unless prompted by truth and conscience
35

such that it is presumed to be voluntary until the contrary is
proved thus stands.
36

The circumstances surrounding the execution of the written
admissions likewise militate against petitioners bare claim.
Petitioners admittedly wrote their respective letters during
office hours in Lilys office which was located in the same
open booth or counter occupied by the cashier and credit
card in-charge.
37
And this Court takes note of the observation
of the trial court that petitioners written notes were "neatly
written in Tagalog, and not in broken Tagalog as spoken by
Lily Ong".
38

In another vein, Rosario labels her written statement as a
mere "apology for breach of procedure".
39
Her resort to
semantics deserves scant consideration, however. A cursory
reading of her letter reveals that she confessed to the taking
of "short-over."
There is a "short-over" when there is a discrepancy between
the actual amount collected appearing in the yellow
(warehouse) copy and the remitted amount appearing in the
blue (accounting) copy.
40

In criminal cases, an admission is something less than a
confession. It is but a statement of facts by the accused,
direct or implied, which do not directly involve an
acknowledgment of his guilt or of his criminal intent to
commit the offense with which he is bound, against his
interests, of the evidence or truths charged. It is an
acknowledgment of some facts or circumstances which, in
itself, is insufficient to authorize a conviction and which tends
only to establish the ultimate facts of guilt. A confession, on
the other hand, is an acknowledgment, in express terms, of
his guilt of the crime charged.
41

The issue on the admissibility of petitioners respective extra-
judicial statements aside, an examination of the rest of the
evidence of the prosecution does not set petitioners free.
The elements of the crime of Theft as provided for in Article
308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.
42

Theft becomes qualified when any of the following
circumstances is present: (1) the theft is committed by a
domestic servant; (2) the theft is committed with grave abuse
of confidence; (3) the property stolen is either a motor
vehicle, mail matter or large cattle; (4) the property stolen
consists of coconuts taken from the premises of a plantation;
(5) the property stolen is fish taken from a fishpond or
fishery; and (6) the property was taken on the occasion of
fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.
43

Cashier Rita testified in a detailed and categorical manner
how the petitioners took the alleged amounts of "short-over"
deducted from the sum of cash collections. The tampered
invoices presented by the prosecution which glaringly show
the variance in the amounts corroborate Ritas claim.
Rosario contends, however, that there was no "unlawful
taking" since the amounts of "short-over" did not belong to
Western. The argument does not lie. The "excess" sums
formed part of the selling price and were paid to, and
received by, Western. The discrepancy in the amounts came
about on account of the alteration in the copies of the
invoices which should have faithfully reflected the same
amount paid by the customer.
As for petitioners claim of entitlement to the "excess"
amounts as salespersons commission, it was not established
in evidence.
Even assuming that the "short-over" was intended to defray
sundry expenses, it was not incumbent upon the salespersons
to claim them and automatically apply them to the
miscellaneous charges. It was beyond the nature of their
functions. The utilization of the "short-over" was not left to
the discretion of the salespersons. The element of unlawful
taking was thus established.
A further review of the nature of petitioners functions
shows, however, that the element of grave abuse of
confidence is wanting in the case.
Q : As an accountant employee since June 1995, Mr. Witness,
you are familiar that in the procedure in any particular branch
of Western Marketing Corporation, are you aware if
somebody buys an item from one store, do you know the
flow of this sale?
A : Yes, sir.
Q : In fact, in the store there are employees which are
assigned with specific duties or functions, is it not?
A : Yes, sir.
Q : Like for instance, lets take the case of Filipina Orellana.
Her function is merely to entertain customers who go to the
store and intend to buy one of the items that are displayed, is
it not?
A : Yes, sir.
Q : So, if this customer is resolved to buy one item, Filipina
Orellana as a sales clerk, all she has to do is to refer the
particular customer to another employee of the company, is
that correct?
A : Yes, sir.
Q : Now, you have also employees who are preparing
invoices, they are called invoicers, is it not?
A : Yes, sir.
Q : So when Filipina Orellana refers this customer to the
invoicer, the invoicer now will take over from that function
of Filipina Orellana after referring this customer?
A : Yes, sir.
Q : And this invoicer now will refer the invoice for this
particular item for payment to the cashier of the company, is
it not?
A : Yes, sir.
Q : And it is the cashier who will receive the payment from
this customer?
A : Yes, sir.
Q : And in fact, the customer or the cashier will receive the
exact amount of payment as reflected in the invoice that was
prepared by the invoicer, is it not?
A : Yes, sir.
Q : From that point up to the payment, Filipina Orellana has
no more hand in that particular transaction, her function is
only to entertain and refer the customer for sales purposes,
that is correct?
A : Yes, sir.
44
(Emphasis, underscoring and italics supplied)
Mere circumstance that petitioners were employees of
Western does not suffice to create the relation of confidence
and intimacy that the law requires.
45
The element of grave
abuse of confidence requires that there be a relation of
independence, guardianship or vigilance between the
petitioners and Western.
46
Petitioners were not tasked to
collect or receive payments. They had no hand in the
safekeeping, preparation and issuance of invoices. They
merely assisted customers in making a purchase and in
demonstrating the merchandise to prospective buyers.
47

While they had access to the merchandise, they had no
access to the cashiers booth or to the cash payments subject
of the offense.
Lily conceded that petitioners were merely tasked to "assist
in the sales from day to day"
48
while Camilo admitted that the
cashier is the custodian of the cash sales invoices and that no
other person can handle or access them.
49
The limited and
peculiar function of petitioners as salespersons explains the
lack of that fiduciary relationship and level of confidence
reposed on them by Western, which the law on Qualified
Theft requires to be proven to have been gravely abused.
Mere breach of trust is not enough. Where the relationship
did not involve strict confidence, whose violation did not
involve grave abuse thereof, the offense committed is only
simple theft.
50
Petitioners should therefore be convicted of
simple theft, instead of Qualified Theft.
On Criminal Case No. Q-96-67827 respecting petitioners
collective guilt in taking away merchandise by making it
appear that certain items were purchased with the use of
stolen cash sales invoices:
It is settled that conspiracy exists when two or more persons
come to an agreement concerning the commission of a crime
and decide to commit it. To effectively serve as a basis for
conviction, conspiracy must be proved as convincingly as the
criminal act. Direct proof is not absolutely required for the
purpose.
A review of the inference drawn from petitioners acts
before, during, and after the commission of the crime to
indubitably indicate a joint purpose, concert of action and
community of interest is thus in order.
51

In Rosarios case, the Office of the Solicitor General made a
sweeping conclusion that the extent of her participation in
the act of taking merchandise need not be specified since she
attributed her other act of taking "short-over" to
"pakikisama" or companionship.
52
The conclusion does not
persuade.
Mere companionship does not establish conspiracy.
53
As
indicated early on, there were two different sets of imputed
acts, one individual and the other collective. Rosarios
admission was material only to her individual guilt as she
referred only to the "short-over". The wording of her
admission cannot be construed to extend to the other
offense charging conspiracy under which no overt act was
established to prove that Rosario shared with, and concurred
in, the criminal design of taking away Westerns
merchandise.1wphi1
The prosecution relied on Auroras statement that
Flormaries husband mentioned Rosario as among those
involved in the anomaly.
54
Under the hearsay evidence rule,
however, a witness can testify only to those facts which he
knows of his personal knowledge, that is, those which are
derived from his own perception, except as otherwise
provided in the Rules.
55

Aurora testified that she witnessed Filipina, along with
Benitez, in inter alia hiring third persons to pose as customers
who received the items upon presenting the tampered
invoice.
56

Filipina in fact gave a written statement acknowledging her
own act of asporting the merchandise. The rule is explicit that
the act, declaration or omission of a party as to a relevant
fact may be given in evidence against him.
57
The declaration
of an accused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein, may be given
in evidence against him.
58

Moreover, Filipinas statement dovetailed with Benitezs
admission, which was corroborated by Flormaries
confessions.
59
In cases alleging conspiracy, an extra-judicial
confession is admissible against a co-conspirator as a
circumstantial evidence to show the probability of
participation of said co-conspirator in the crime committed.
60

Except with respect to Rosario, then, this Court finds well-
taken the trial courts observation that the admissions were
full of substantial details as to how the accused conspired to
commit the criminal acts and as to how they manipulated the
sales transactions at Western to effect and consummate the
theft of the goods.
In fine, insofar as Filipina is concerned, a thorough evaluation
of the evidence warrants the affirmance of her guilt beyond
reasonable doubt of having conspired with Benitez et al.
On the imposition of the correct penalty, People v. Mercado
61

is instructive. In the determination of the penalty for
Qualified Theft, note is taken of the value of the property
stolen, which is P797,984.00. Since the value exceeds
P22,000.00, the basic penalty is prision mayor in its minimum
and medium periods to be imposed in the maximum period
Eight (8) Years, Eight (8) Months and One (1) Day to Ten
(10) Years of prision mayor.
To determine the additional years of imprisonment, the
amount of P22,000.00 is deducted from P797,984.00, which
yields a remainder of P775,984.00. This amount is then
divided by
P10,000.00, disregarding any amount less than P10,000.00.
The end result is that 77 years should be added to the basic
penalty.
The total imposable penalty for simple theft should not
exceed 20 years, however.
As for the penalty for Qualified Theft, it is two degrees higher
than that for Simple Theft, hence, the correct penalty is
reclusion perpetua.
WHEREFORE, the Decision of the Court of Appeals dated
December 18, 2002 is MODIFIED.
In Criminal Case No. Q-96-67829, petitioner ROSARIO V.
ASTUDILLO is found guilty beyond reasonable doubt of
Simple Theft, and is sentenced to suffer an indeterminate
penalty ranging from Two (2) Years, Four (4) Months and One
(1) Day of prision correccional in its medium and maximum
periods as minimum, to Seven (7) Years, Four (4) Months and
One (1) Day of prision mayor in its minimum and medium
periods as maximum, and to pay to the offended party the
amount of P12,665.00 as civil liability.
In Criminal Case No. Q-96-67830, petitioner FILIPINA M.
ORELLANA is found guilty beyond reasonable doubt of Simple
Theft, and is sentenced to suffer an indeterminate penalty
ranging from Two (2) Months, and One (1) Day of arresto
mayor in its medium and maximum periods as minimum, to
One (1) Year, Eight (8) Months and Twenty-One (21) Days of
prision correccional in its minimum and medium periods as
maximum, and to pay to the offended party the amount of
P4,755.00 as civil liability.
In Criminal Case No. Q-96-67827, petitioner ROSARIO V.
ASTUDILLO is acquitted.
In all other respects, the assailed Decision is affirmed except
that petitioner FILIPINA M. ORELLANA is sentenced to suffer
the penalty of reclusion perpetua with the accessory penalties
under Article 40 of the Revised Penal Code.
SO ORDERED.
BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. CASA
MONTESSORI INTERNATIONALE and LEONARDO T. YABUT,
respondents.
[G.R. No. 149507. May 28, 2004]
CASA MONTESSORI INTERNATIONALE, petitioner, vs. BANK OF
THE PHILIPPINE ISLANDS, respondent.
D E C I S I O N
PANGANIBAN, J.:
By the nature of its functions, a bank is required to take
meticulous care of the deposits of its clients, who have the
right to expect high standards of integrity and performance
from it. Among its obligations in furtherance thereof is
knowing the signatures of its clients. Depositors are not
estopped from questioning wrongful withdrawals, even if
they have failed to question those errors in the statements
sent by the bank to them for verification.
The Case
Before us are two Petitions for Review1[1] under Rule 45 of
the Rules of Court, assailing the March 23, 2001 Decision2[2]





and the August 17, 2001 Resolution3[3] of the Court of
Appeals (CA) in CA-GR CV No. 63561. The decretal portion of
the assailed Decision reads as follows:
WHEREFORE, upon the premises, the decision appealed
from is AFFIRMED with the modification that defendant bank
[Bank of the Philippine Islands (BPI)] is held liable only for
one-half of the value of the forged checks in the amount of
P547,115.00 after deductions subject to REIMBURSEMENT
from third party defendant Yabut who is likewise ORDERED
to pay the other half to plaintiff corporation [Casa Montessori
Internationale (CASA)+.4[4]
The assailed Resolution denied all the parties Motions for
Reconsideration.
The Facts
The facts of the case are narrated by the CA as follows:
On November 8, 1982, plaintiff CASA Montessori
International5[5] opened Current Account No. 0291-0081-01
with defendant BPI*,+ with CASAs President Ms. Ma. Carina C.
Lebron as one of its authorized signatories.
In 1991, after conducting an investigation, plaintiff
discovered that nine (9) of its checks had been encashed by a
certain Sonny D. Santos since 1990 in the total amount of
P782,000.00, on the following dates and amounts:
Check No. Date Amount
1. 839700 April 24, 1990
P 43,400.00
2. 839459 Nov. 2, 1990
110,500.00
3. 839609 Oct. 17, 1990
47,723.00
4. 839549 April 7, 1990
90,700.00
5. 839569 Sept. 23, 1990
52,277.00
6. 729149 Mar. 22, 1990
148,000.00
7. 729129 Mar. 16, 1990
51,015.00
8. 839684 Dec. 1, 1990
140,000.00
9. 729034 Mar. 2, 1990
98,985.00
Total -- P
782,600.006[6]








It turned out that Sonny D. Santos with account at BPIs
Greenbelt Branch [was] a fictitious name used by third party
defendant Leonardo T. Yabut who worked as external auditor
of CASA. Third party defendant voluntarily admitted that he
forged the signature of Ms. Lebron and encashed the checks.
The PNP Crime Laboratory conducted an examination of the
nine (9) checks and concluded that the handwritings thereon
compared to the standard signature of Ms. Lebron were not
written by the latter.
On March 4, 1991, plaintiff filed the herein Complaint for
Collection with Damages against defendant bank praying that
the latter be ordered to reinstate the amount of
P782,500.007[7] in the current and savings accounts of the
plaintiff with interest at 6% per annum.
On February 16, 1999, the RTC rendered the appealed
decision in favor of the plaintiff.8[8]
Ruling of the Court of Appeals
Modifying the Decision of the Regional Trial Court (RTC), the
CA apportioned the loss between BPI and CASA. The
appellate court took into account CASAs contributory
negligence that resulted in the undetected forgery. It then
ordered Leonardo T. Yabut to reimburse BPI half the total
amount claimed; and CASA, the other half. It also disallowed
attorneys fees and moral and exemplary damages.
Hence, these Petitions.9[9]
Issues
In GR No. 149454, Petitioner BPI submits the following issues
for our consideration:
I. The Honorable Court of Appeals erred in deciding this case
NOT in accord with the applicable decisions of this
Honorable Court to the effect that forgery cannot be
presumed; that it must be proved by clear, positive and
convincing evidence; and that the burden of proof lies on the
party alleging the forgery.
II. The Honorable Court of Appeals erred in deciding this
case not in accord with applicable laws, in particular the
Negotiable Instruments Law (NIL) which precludes CASA, on
account of its own negligence, from asserting its forgery claim








against BPI, specially taking into account the absence of any
negligence on the part of BPI.10[10]
In GR No. 149507, Petitioner CASA submits the following
issues:
1. The Honorable Court of Appeals erred when it ruled that
there is no showing that *BPI+, although negligent, acted in
bad faith x x x thus denying the prayer for the award of
attorneys fees, moral damages and exemplary damages to
[CASA]. The Honorable Court also erred when it did not order
[BPI] to pay interest on the amounts due to [CASA].
2. The Honorable Court of Appeals erred when it declared
that [CASA] was likewise negligent in the case at bar, thus
warranting its conclusion that the loss in the amount of
P547,115.00 be apportioned between *CASA+ and *BPI+ x x
x.11[11]
These issues can be narrowed down to three. First, was there
forgery under the Negotiable Instruments Law (NIL)? Second,
were any of the parties negligent and therefore precluded
from setting up forgery as a defense? Third, should moral
and exemplary damages, attorneys fees, and interest be
awarded?
The Courts Ruling
The Petition in GR No. 149454 has no merit, while that in GR
No. 149507 is partly meritorious.
First Issue:
Forged Signature Wholly Inoperative
Section 23 of the NIL provides:
Section 23. Forged signature; effect of. -- When a signature
is forged or made without the authority of the person whose
signature it purports to be, it is wholly inoperative, and no
right x x x to enforce payment thereof against any party
thereto, can be acquired through or under such signature,
unless the party against whom it is sought to enforce such
right is precluded from setting up the forgery or want of
authority.12[12]
Under this provision, a forged signature is a real13[13] or
absolute defense,14[14] and a person whose signature on a











negotiable instrument is forged is deemed to have never
become a party thereto and to have never consented to the
contract that allegedly gave rise to it.15[15]
The counterfeiting of any writing, consisting in the signing of
anothers name with intent to defraud, is forgery.16[16]
In the present case, we hold that there was forgery of the
drawers signature on the check.
First, both the CA17[17] and the RTC18[18] found that
Respondent Yabut himself had voluntarily admitted, through
an Affidavit, that he had forged the drawers signature and
encashed the checks.19[19] He never refuted these
findings.20[20] That he had been coerced into admission was
not corroborated by any evidence on record.21[21]
Second, the appellate and the trial courts also ruled that the
PNP Crime Laboratory, after its examination of the said
checks,22[22] had concluded that the handwritings thereon --
compared to the standard signature of the drawer -- were not
hers.23[23] This conclusion was the same as that in the



















Report24[24] that the PNP Crime Laboratory had earlier
issued to BPI -- the drawee bank -- upon the latters request.
Indeed, we respect and affirm the RTCs factual findings,
especially when affirmed by the CA, since these are
supported by substantial evidence on record.25[25]
Voluntary Admission Not
Violative of Constitutional Rights
The voluntary admission of Yabut did not violate his
constitutional rights (1) on custodial investigation, and (2)
against self-incrimination.
In the first place, he was not under custodial
investigation.26[26] His Affidavit was executed in private and
before private individuals.27[27] The mantle of protection
under Section 12 of Article III of the 1987 Constitution28[28]
covers only the period from the time a person is taken into
custody for investigation of his possible participation in the
commission of a crime or from the time he is singled out as a
suspect in the commission of a crime although not yet in
custody.29[29]
Therefore, to fall within the ambit of Section 12, quoted
above, there must be an arrest or a deprivation of freedom,
with questions propounded on him by the police authorities
for the purpose of eliciting admissions, confessions, or any
information.30[30] The said constitutional provision does
not apply to spontaneous statements made in a voluntary
manner31[31] whereby an individual orally admits to
















authorship of a crime.32*32+ What the Constitution
proscribes is the compulsory or coercive disclosure of
incriminating facts.33[33]
Moreover, the right against self-incrimination34[34] under
Section 17 of Article III35[35] of the Constitution, which is
ordinarily available only in criminal prosecutions, extends to
all other government proceedings -- including civil actions,
legislative investigations,36[36] and administrative
proceedings that possess a criminal or penal aspect37[37] --
but not to private investigations done by private individuals.
Even in such government proceedings, this right may be
waived,38[38] provided the waiver is certain; unequivocal;
and intelligently, understandingly and willingly made.39[39]
If in these government proceedings waiver is allowed, all the
more is it so in private investigations. It is of no moment that
no criminal case has yet been filed against Yabut. The filing
thereof is entirely up to the appropriate authorities or to the
private individuals upon whom damage has been caused. As
we shall also explain later, it is not mandatory for CASA -- the
plaintiff below -- to implead Yabut in the civil case before the
lower court.


















Under these two constitutional provisions, *t+he Bill of
Rights40[40] does not concern itself with the relation
between a private individual and another individual. It
governs the relationship between the individual and the
State.41*41+ Moreover, the Bill of Rights is a charter of
liberties for the individual and a limitation upon the power of
the *S+tate.42[42] These rights43[43] are guaranteed to
preclude the slightest coercion by the State that may lead the
accused to admit something false, not prevent him from
freely and voluntarily telling the truth.44[44]
Yabut is not an accused here. Besides, his mere invocation of
the aforesaid rights does not automatically entitle him to the
constitutional protection.45[45] When he freely and
voluntarily executed46[46] his Affidavit, the State was not
even involved. Such Affidavit may therefore be admitted
without violating his constitutional rights while under
custodial investigation and against self-incrimination.
Clear, Positive and Convincing
Examination and Evidence
The examination by the PNP, though inconclusive, was
nevertheless clear, positive and convincing.
Forgery cannot be presumed.47[47] It must be established
by clear, positive and convincing evidence.48[48] Under the


















best evidence rule as applied to documentary evidence like
the checks in question, no secondary or substitutionary
evidence may inceptively be introduced, as the original
writing itself must be produced in court.49[49] But when,
without bad faith on the part of the offeror, the original
checks have already been destroyed or cannot be produced
in court, secondary evidence may be produced.50[50]
Without bad faith on its part, CASA proved the loss or
destruction of the original checks through the Affidavit of the
one person who knew of that fact51[51] -- Yabut. He clearly
admitted to discarding the paid checks to cover up his
misdeed.52[52] In such a situation, secondary evidence like
microfilm copies may be introduced in court.
The drawers signatures on the microfilm copies were
compared with the standard signature. PNP Document
Examiner II Josefina de la Cruz testified on cross-examination
that two different persons had written them.53[53] Although
no conclusive report could be issued in the absence of the
original checks,54[54] she affirmed that her findings were 90
percent conclusive.55[55] According to her, even if the
microfilm copies were the only basis of comparison, the
differences were evident.56[56] Besides, the RTC explained


















that although the Report was inconclusive, no conclusive
report could have been given by the PNP, anyway, in the
absence of the original checks.57[57] This explanation is
valid; otherwise, no such report can ever be relied upon in
court.
Even with respect to documentary evidence, the best
evidence rule applies only when the contents of a document -
- such as the drawers signature on a check -- is the subject of
inquiry.58[58] As to whether the document has been actually
executed, this rule does not apply; and testimonial as well as
any other secondary evidence is admissible.59[59] Carina
Lebron herself, the drawers authorized signatory, testified
many times that she had never signed those checks. Her
testimonial evidence is admissible; the checks have not been
actually executed. The genuineness of her handwriting is
proved, not only through the courts comparison of the
questioned handwritings and admittedly genuine specimens
thereof,60[60] but above all by her.
The failure of CASA to produce the original checks neither
gives rise to the presumption of suppression of
evidence61[61] nor creates an unfavorable inference against
it.62[62] Such failure merely authorizes the introduction of
secondary evidence63[63] in the form of microfilm copies. Of
no consequence is the fact that CASA did not present the
signature card containing the signatures with which those on
the checks were compared.64[64] Specimens of standard
















signatures are not limited to such a card. Considering that it
was not produced in evidence, other documents that bear
the drawers authentic signature may be resorted to.65[65]
Besides, that card was in the possession of BPI -- the adverse
party.
We have held that without the original document containing
the allegedly forged signature, one cannot make a definitive
comparison that would establish forgery;66[66] and that a
comparison based on a mere reproduction of the document
under controversy cannot produce reliable results.67[67] We
have also said, however, that a judge cannot merely rely on a
handwriting experts testimony,68[68] but should also
exercise independent judgment in evaluating the authenticity
of a signature under scrutiny.69[69] In the present case, both
the RTC and the CA conducted independent examinations of
the evidence presented and arrived at reasonable and similar
conclusions. Not only did they admit secondary evidence;
they also appositely considered testimonial and other
documentary evidence in the form of the Affidavit.
The best evidence rule admits of exceptions and, as we have
discussed earlier, the first of these has been met.70[70] The
result of examining a questioned handwriting, even with the
aid of experts and scientific instruments, may be
inconclusive;71[71] but it is a non sequitur to say that such
result is not clear, positive and convincing. The
















preponderance of evidence required in this case has been
satisfied.72[72]
Second Issue:
Negligence Attributable to BPI Alone
Having established the forgery of the drawers signature, BPI -- the
drawee -- erred in making payments by virtue thereof. The
forged signatures are wholly inoperative, and CASA -- the
drawer whose authorized signatures do not appear on the
negotiable instruments -- cannot be held liable thereon.
Neither is the latter precluded from setting up forgery as a
real defense.
Clear Negligence
in Allowing Payment
Under a Forged Signature
We have repeatedly emphasized that, since the banking
business is impressed with public interest, of paramount
importance thereto is the trust and confidence of the public
in general. Consequently, the highest degree of
diligence73[73] is expected,74[74] and high standards of
integrity and performance are even required, of it.75[75] By
the nature of its functions, a bank is under obligation to
treat the accounts of its depositors with meticulous
care,76[76] always having in mind the fiduciary nature of
their relationship.77[77]
BPI contends that it has a signature verification procedure, in
which checks are honored only when the signatures therein
are verified to be the same with or similar to the specimen
signatures on the signature cards. Nonetheless, it still failed
to detect the eight instances of forgery. Its negligence
consisted in the omission of that degree of diligence
required78[78] of a bank. It cannot now feign ignorance, for














very early on we have already ruled that a bank is bound to
know the signatures of its customers; and if it pays a forged
check, it must be considered as making the payment out of its
own funds, and cannot ordinarily charge the amount so paid
to the account of the depositor whose name was
forged.79[79] In fact, BPI was the same bank involved when
we issued this ruling seventy years ago.
Neither Waiver nor Estoppel
Results from Failure to
Report Error in Bank Statement
The monthly statements issued by BPI to its clients contain a
notice worded as follows: If no error is reported in ten (10)
days, account will be correct.80[80] Such notice cannot be
considered a waiver, even if CASA failed to report the error.
Neither is it estopped from questioning the mistake after the
lapse of the ten-day period.
This notice is a simple confirmation81[81] or circularization
-- in accounting parlance -- that requests client-depositors to
affirm the accuracy of items recorded by the banks.82[82] Its
purpose is to obtain from the depositors a direct
corroboration of the correctness of their account balances
with their respective banks.83[83] Internal or external
auditors of a bank use it as a basic audit procedure84[84] --
the results of which its client-depositors are neither
interested in nor privy to -- to test the details of transactions
and balances in the banks records.85[85] Evidential matter
















obtained from independent sources outside a bank only
serves to provide greater assurance of reliability86[86] than
that obtained solely within it for purposes of an audit of its
own financial statements, not those of its client-depositors.
Furthermore, there is always the audit risk that errors would
not be detected87[87] for various reasons. One, materiality is
a consideration in audit planning;88[88] and two, the
information obtained from such a substantive test is merely
presumptive and cannot be the basis of a valid waiver.89[89]
BPI has no right to impose a condition unilaterally and
thereafter consider failure to meet such condition a waiver.
Neither may CASA renounce a right90[90] it has never
possessed.91[91]
Every right has subjects -- active and passive. While the
active subject is entitled to demand its enforcement, the
passive one is duty-bound to suffer such enforcement.92[92]
On the one hand, BPI could not have been an active subject,
because it could not have demanded from CASA a response
to its notice. Besides, the notice was a measly request
worded as follows: Please examine x x x and report x x
x.93[93] CASA, on the other hand, could not have been a
passive subject, either, because it had no obligation to
respond. It could -- as it did -- choose not to respond.

















Estoppel precludes individuals from denying or asserting, by
their own deed or representation, anything contrary to that
established as the truth, in legal contemplation.94[94] Our
rules on evidence even make a juris et de jure
presumption95*95+ that whenever one has, by ones own act
or omission, intentionally and deliberately led another to
believe a particular thing to be true and to act upon that
belief, one cannot -- in any litigation arising from such act or
omission -- be permitted to falsify that supposed truth.96[96]
In the instant case, CASA never made any deed or
representation that misled BPI. The formers omission, if any,
may only be deemed an innocent mistake oblivious to the
procedures and consequences of periodic audits. Since its
conduct was due to such ignorance founded upon an
innocent mistake, estoppel will not arise.97[97] A person who
has no knowledge of or consent to a transaction may not be
estopped by it.98*98+ Estoppel cannot be sustained by mere
argument or doubtful inference x x x.99[99] CASA is not
barred from questioning BPIs error even after the lapse of
the period given in the notice.
Loss Borne by
Proximate Source
of Negligence
For allowing payment100[100] on the checks to a wrongful
and fictitious payee, BPI -- the drawee bank -- becomes liable
to its depositor-drawer. Since the encashing bank is one of its
branches,101[101] BPI can easily go after it and hold it liable
















for reimbursement.102*102+ It may not debit the drawers
account103[103] and is not entitled to indemnification from
the drawer.104[104] In both law and equity, when one of
two innocent persons must suffer by the wrongful act of a
third person, the loss must be borne by the one whose
negligence was the proximate cause of the loss or who put it
into the power of the third person to perpetrate the
wrong.105[105]
Proximate cause is determined by the facts of the
case.106*106+ It is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result
would not have occurred.107[107]
Pursuant to its prime duty to ascertain well the genuineness
of the signatures of its client-depositors on checks being
encashed, BPI is expected to use reasonable business
prudence.108[108] In the performance of that obligation, it
is bound by its internal banking rules and regulations that
form part of the contract it enters into with its
depositors.109[109]
Unfortunately, it failed in that regard. First, Yabut was able to
open a bank account in one of its branches without


















privity;110[110] that is, without the proper verification of his
corresponding identification papers. Second, BPI was unable
to discover early on not only this irregularity, but also the
marked differences in the signatures on the checks and those
on the signature card. Third, despite the examination
procedures it conducted, the Central Verification
Unit111[111] of the bank even passed off these evidently
different signatures as genuine. Without exercising the
required prudence on its part, BPI accepted and encashed the
eight checks presented to it. As a result, it proximately
contributed to the fraud and should be held primarily
liable112*112+ for the negligence of its officers or agents
when acting within the course and scope of their
employment.113[113] It must bear the loss.
CASA Not Negligent
in Its Financial Affairs
In this jurisdiction, the negligence of the party invoking
forgery is recognized as an exception114[114] to the general
rule that a forged signature is wholly inoperative.115[115]
Contrary to BPIs claim, however, we do not find CASA
negligent in handling its financial affairs. CASA, we stress, is
not precluded from setting up forgery as a real defense.
Role of Independent Auditor
The major purpose of an independent audit is to investigate
and determine objectively if the financial statements
submitted for audit by a corporation have been prepared in
accordance with the appropriate financial reporting
practices116[116] of private entities. The relationship that















arises therefrom is both legal and moral.117[117] It begins
with the execution of the engagement letter118[118] that
embodies the terms and conditions of the audit and ends
with the fulfilled expectation of the auditors ethical119[119]
and competent performance in all aspects of the
audit.120[120]
The financial statements are representations of the client; but
it is the auditor who has the responsibility for the accuracy in
the recording of data that underlies their preparation, their
form of presentation, and the opinion121[121] expressed
therein.122[122] The auditor does not assume the role of
employee or of management in the clients conduct of
operations123[123] and is never under the control or
supervision124[124] of the client.
Yabut was an independent auditor125[125] hired by CASA.
He handled its monthly bank reconciliations and had access
to all relevant documents and checkbooks.126[126] In him





















was reposed the clients127[127] trust and
confidence128[128] that he would perform precisely those
functions and apply the appropriate procedures in
accordance with generally accepted auditing
standards.129[129] Yet he did not meet these expectations.
Nothing could be more horrible to a client than to discover
later on that the person tasked to detect fraud was the same
one who perpetrated it.
Cash Balances
Open to Manipulation
It is a non sequitur to say that the person who receives the
monthly bank statements, together with the cancelled checks
and other debit/credit memoranda, shall examine the
contents and give notice of any discrepancies within a
reasonable time. Awareness is not equipollent with
discernment.
Besides, in the internal accounting control system prudently
installed by CASA,130[130] it was Yabut who should examine
those documents in order to prepare the bank
reconciliations.131[131] He owned his working
papers,132[132] and his output consisted of his opinion as
well as the clients financial statements and accompanying
notes thereto. CASA had every right to rely solely upon his
output -- based on the terms of the audit engagement -- and
could thus be unwittingly duped into believing that
everything was in order. Besides, *g+ood faith is always
presumed and it is the burden of the party claiming otherwise
to adduce clear and convincing evidence to the
contrary.133[133]















Moreover, there was a time gap between the period covered
by the bank statement and the date of its actual receipt.
Lebron personally received the December 1990 bank
statement only in January 1991134[134] -- when she was also
informed of the forgery for the first time, after which she
immediately requested a stop payment order. She cannot
be faulted for the late detection of the forged December
check. After all, the bank account with BPI was not personal
but corporate, and she could not be expected to monitor
closely all its finances. A preschool teacher charged with
molding the minds of the youth cannot be burdened with the
intricacies or complexities of corporate existence.
There is also a cutoff period such that checks issued during a
given month, but not presented for payment within that
period, will not be reflected therein.135[135] An experienced
auditor with intent to defraud can easily conceal any devious
scheme from a client unwary of the accounting processes
involved by manipulating the cash balances on record --
especially when bank transactions are numerous, large and
frequent. CASA could only be blamed, if at all, for its
unintelligent choice in the selection and appointment of an
auditor -- a fault that is not tantamount to negligence.
Negligence is not presumed, but proven by whoever alleges
it.136*136+ Its mere existence is not sufficient without proof
that it, and no other cause,137[137] has given rise to
damages.138[138] In addition, this fault is common to, if not
prevalent among, small and medium-sized business entities,
thus leading the Professional Regulation Commission (PRC),
through the Board of Accountancy (BOA), to require today
not only accreditation for the practice of public
accountancy,139[139] but also the registration of firms in the
practice thereof. In fact, among the attachments now













required upon registration are the code of good
governance140[140] and a sworn statement on adequate and
effective training.141[141]
The missing checks were certainly reported by the
bookkeeper142[142] to the accountant143[143] -- her
immediate supervisor -- and by the latter to the auditor.
However, both the accountant and the auditor, for reasons
known only to them, assured the bookkeeper that there were
no irregularities.
The bookkeeper144[144] who had exclusive custody of the
checkbooks145[145] did not have to go directly to CASAs
president or to BPI. Although she rightfully reported the
matter, neither an investigation was conducted nor a
resolution of it was arrived at, precisely because the person
at the top of the helm was the culprit. The vouchers, invoices
and check stubs in support of all check disbursements could
be concealed or fabricated -- even in collusion -- and
management would still have no way to verify its cash
accountabilities.
Clearly then, Yabut was able to perpetrate the wrongful act
through no fault of CASA. If auditors may be held liable for
breach of contract and negligence,146[146] with all the more
reason may they be charged with the perpetration of fraud
upon an unsuspecting client. CASA had the discretion to
pursue BPI alone under the NIL, by reason of expediency or
munificence or both. Money paid under a mistake may















rightfully be recovered,147[147] and under such terms as the
injured party may choose.
Third Issue:
Award of Monetary Claims
Moral Damages Denied
We deny CASAs claim for moral damages.
In the absence of a wrongful act or omission,148[148] or of
fraud or bad faith,149[149] moral damages cannot be
awarded.150[150] The adverse result of an action does not
per se make the action wrongful, or the party liable for it.
One may err, but error alone is not a ground for granting such
damages.151[151] While no proof of pecuniary loss is
necessary therefor -- with the amount to be awarded left to
the courts discretion152[152] -- the claimant must
nonetheless satisfactorily prove the existence of its factual
basis153[153] and causal relation154*154+ to the claimants
act or omission.155[155]
Regrettably, in this case CASA was unable to identify the
particular instance -- enumerated in the Civil Code -- upon



















which its claim for moral damages is predicated.156[156]
Neither bad faith nor negligence so gross that it amounts to
malice157[157] can be imputed to BPI. Bad faith, under the
law, does not simply connote bad judgment or
negligence;158[158] it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of a
known duty through some motive or interest or ill will that
partakes of the nature of fraud.159[159]
As a general rule, a corporation -- being an artificial person
without feelings, emotions and senses, and having existence
only in legal contemplation -- is not entitled to moral
damages,160[160] because it cannot experience physical
suffering and mental anguish.161[161] However, for breach
of the fiduciary duty required of a bank, a corporate client
may claim such damages when its good reputation is
besmirched by such breach, and social humiliation results
therefrom.162[162] CASA was unable to prove that BPI had
debased the good reputation of,163[163] and consequently
caused incalculable embarrassment to, the former. CASAs
mere allegation or supposition thereof, without any sufficient
evidence on record,164[164] is not enough.



















Exemplary Damages Also Denied
We also deny CASAs claim for exemplary damages.
Imposed by way of correction165[165] for the public
good,166[166] exemplary damages cannot be recovered as a
matter of right.167[167] As we have said earlier, there is no
bad faith on the part of BPI for paying the checks of CASA
upon forged signatures. Therefore, the former cannot be said
to have acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner.168[168] The latter, having no right to
moral damages, cannot demand exemplary
damages.169[169]
Attorneys Fees Granted
Although it is a sound policy not to set a premium on the right
to litigate,170[170] we find that CASA is entitled to
reasonable attorneys fees based on factual, legal, and
equitable justification.171[171]
When the act or omission of the defendant has compelled
the plaintiff to incur expenses to protect the latters
interest,172[172] or where the court deems it just and
equitable,173*173+ attorneys fees may be recovered. In the



















present case, BPI persistently denied the claim of CASA under
the NIL to recredit the latters account for the value of the
forged checks. This denial constrained CASA to incur
expenses and exert effort for more than ten years in order to
protect its corporate interest in its bank account. Besides, we
have already cautioned BPI on a similar act of negligence it
had committed seventy years ago, but it has remained
unrelenting. Therefore, the Court deems it just and equitable
to grant ten percent (10%)174[174] of the total value
adjudged to CASA as attorneys fees.
Interest Allowed
For the failure of BPI to pay CASA upon demand and for
compelling the latter to resort to the courts to obtain
payment, legal interest may be adjudicated at the discretion
of the Court, the same to run from the filing175[175] of the
Complaint.176[176] Since a court judgment is not a loan or a
forbearance of recovery, the legal interest shall be at six
percent (6%) per annum.177*177+ If the obligation consists
in the payment of a sum of money, and the debtor incurs in
delay, the indemnity for damages, there being no stipulation
to the contrary, shall be the payment of x x x legal interest,
which is six percent per annum.178[178] The actual base for
its computation shall be on the amount finally
adjudged,179[179] compounded180[180] annually to make
up for the cost of money181[181] already lost to CASA.

















Moreover, the failure of the CA to award interest does not
prevent us from granting it upon damages awarded for
breach of contract.182[182] Because BPI evidently breached
its contract of deposit with CASA, we award interest in
addition to the total amount adjudged. Under Section 196 of
the NIL, any case not provided for shall be governed by the
provisions of existing legislation or, in default thereof, by the
rules of the law merchant.183[183] Damages are not
provided for in the NIL. Thus, we resort to the Code of
Commerce and the Civil Code. Under Article 2 of the Code of
Commerce, acts of commerce shall be governed by its
provisions and, in their absence, by the usages of commerce
generally observed in each place; and in the absence of both
rules, by those of the civil law.184[184] This law being silent,
we look at Article 18 of the Civil Code, which states: In
matters which are governed by the Code of Commerce and
special laws, their deficiency shall be supplied by its
provisions. A perusal of these three statutes unmistakably
shows that the award of interest under our civil law is
justified.
WHEREFORE, the Petition in GR No. 149454 is hereby
DENIED, and that in GR No. 149507 PARTLY GRANTED. The
assailed Decision of the Court of Appeals is AFFIRMED with
modification: BPI is held liable for P547,115, the total value of
the forged checks less the amount already recovered by CASA
from Leonardo T. Yabut, plus interest at the legal rate of six
percent (6%) per annum -- compounded annually, from the
filing of the complaint until paid in full; and attorneys fees of
ten percent (10%) thereof, subject to reimbursement from
Respondent Yabut for the entire amount, excepting
attorneys fees. Let a copy of this Decision be furnished the
Board of Accountancy of the Professional Regulation
Commission for such action as it may deem appropriate
against Respondent Yabut. No costs.
SO ORDERED.

ESTELITO V. REMOLONA, petitioner, vs. CIVIL SERVICE
COMMISSION, respondent.
D E C I S I O N
PUNO, J.:
The present petition seeks to review and set aside the
Decision rendered by the Court of Appeals dated July 31,
1998xxx[1] upholding the decision of the Civil Service
Commission which ordered the dismissal of petitioner Estelito
V. Remolona (Remolona) from the government service for







dishonesty, and the Resolution dated February 5, 1999xxxi[2]
denying petitioner's motion for reconsideration.
Records show that petitioner Estelito V. Remolona is the
Postmaster at the Postal Office Service in Infanta, Quezon,
while his wife Nery Remolona is a teacher at the Kiborosa
Elementary School.
In a letterxxxii[3] dated January 3, 1991, Francisco R. America,
District Supervisor of the Department of Education, Culture &
Sports at Infanta, Quezon, inquired from the Civil Service
Commission (CSC) as to the status of the civil service eligibility
of Mrs. Remolona who purportedly got a rating of 81.25% as
per Report of Rating issued by the National Board for
Teachers.xxxiii[4] Mr. America likewise disclosed that he
received information that Mrs. Remolona was campaigning
for a fee of P8,000.00 per examinee for a passing mark in the
teacher's board examinations.
On February 11, 1991, then CSC Chairman Patricia A. Sto.
Tomas issued an Order directing CSC Region IV Director Bella
Amilhasan to conduct an investigation on Mrs. Remolona's
eligibility, after verification from the Register of Eligibles in
the Office for Central Personnel Records revealed "that
Remolona's name is not in the list of passing and failing
examinees, and that the list of examinees for December 10,
1989 does not include the name of Remolona. Furthermore,
Examination No. 061285 as indicated in her report of rating
belongs to a certain Marlou C. Madelo, who took the
examination in Cagayan de Oro and got a rating of
65.00%."xxxiv[5]
During the preliminary investigation conducted by Jaime G.
Pasion, Director II, Civil Service Field Office, Lucena City,
Quezon, only petitioner Remolona appeared. He signed a
written statement of factsxxxv[6] regarding the issuance of
the questioned Report of Rating of Mrs. Remolona, which is
summarized in the Memorandumxxxvi[7] submitted by
Director Pasion as follows:
"3.1 That sometime in the first week of September, 1990,
while riding in a Kapalaran Transit Bus from Sta. Cruz, Laguna
on his way to San Pablo City, he met one Atty. Hadji Salupadin
(this is how it sounded) who happened to be sitting beside
him;
3.2 That a conversation broke out between them until he was
able to confide his problem to Atty. Salupadin about his wife
having difficulty in acquiring an eligibility;
3.3 That Atty. Salupadin who represented himself as working
at the Batasan, offered his help for a fee of P3,000.00;
3.4 That the following day they met at the Batasan where he
gave the amount of P2,000.00, requirements, application
form and picture of his wife;
3.5 That the following week, Thursday, at around 1:00 P.M.,
they met again at the Batasan where he handed to Atty.
Salupadin the amount of P1,000.00 plus P500.00 bonus who
in turn handed to him the Report of Rating of one Nery C.
Remolona with a passing grade, then they parted;
3.6 That sometime in the last week of September, he showed
the Report of Rating to the District Supervisor, Francisco
America who informed her (sic) that there was no vacancy;
3.7 That he went to Lucena City and complained to Dr.
Magsino in writing x x x that Mr. America is asking for money
in exchange for the appointment of his wife but failed to
make good his promise. He attached the corroborating
affidavits of Mesdames Carmelinda Pradillada and Rosemarie
P. Romantico and Nery C. Remolona x x x;
3.8 That from 1986 to 1988, Mr. America was able to get six
(6) checks at P2,600.00 each plus bonus of Nery C. Remolona;
3.9 That Mr. America got mad at them. And when he felt that
Mr. America would verify the authenticity of his wife's Report
of Rating, he burned the original."
Furthermore, Remolona admitted that he was responsible in
acquiring the alleged fake eligibility, that his wife has no
knowledge thereof, and that he did it because he wanted
them to be together. Based on the foregoing, Director Pasion
recommended the filing of the appropriate administrative
action against Remolona but absolved Mrs. Nery Remolona
from any liability since it has not been shown that she
willfully participated in the commission of the offense.
Consequently, a Formal Charge dated April 6, 1993 was filed
against petitioner Remolona, Nery C. Remolona, and Atty.
Hadji Salupadin for possession of fake eligibility, falsification
and dishonesty.xxxvii[8] A formal hearing ensued wherein the
parties presented their respective evidence. Thereafter, CSC
Regional Director Bella A. Amilhasan issued a Memorandum
dated February 14, 1995xxxviii[9] recommending that the
spouses Estelito and Nery Remolona be found guilty as
charged and be meted the corresponding penalty.
Said recommendation was adopted by the CSC which issued
Resolution No. 95-2908 on April 20, 1995, finding the spouses
Estelito and Nery Remolona guilty of dishonesty and imposing
the penalty of dismissal and all its accessory penalties. The
case against Atty. Hadji Salupadin was held in abeyance
pending proof of his identity.xxxix[10] In its Resolution No.
965510xl[11] dated August 27, 1996, the CSC, acting on the
motion for reconsideration filed by the spouses Remolona,
absolved Nery Remolona from liability and held that:
"Further, a review of the records and of the arguments
presented fails to persuade this Commission to reconsider its
earlier resolution insofar as Estelito Remolona's culpability is
concerned. The evidence is substantial enough to effect his
conviction. His act of securing a fake eligibility for his wife is
proved by substantial evidence. However, in the case of Nery
Remolona, the Commission finds her innocent of the offense
charged, for there is no evidence to show that she has used
the fake eligibility to support an appointment or promotion.
In fact, Nery Remolona did not indicate in her Personal Data
Sheet that she possesses any eligibility. It must be pointed
out that it was her husband who unilaterally worked to
secure a fake eligibility for her.
WHEREFORE, the instant Motion for Reconsideration is
hereby denied insofar as respondent Estelito Remolona is
concerned. However, Resolution No. 95-2908 is modified in
the sense that respondent Nery Remolona is exonerated of
the charges. Accordingly, Nery Remolona is automatically
reinstated to her former position as Teacher with back
salaries and other benefits."
On appeal, the Court of Appeals rendered its questioned
decision dismissing the petition for review filed by herein
petitioner Remolona. His motion for reconsideration and/or
new trial was likewise denied. Hence, this petition for review.
Petitioner submits that the Court of Appeals erred:
1. in denying petitioner's motion for new trial;
2. in holding that petitioner is liable for dishonesty; and
3. in sustaining the dismissal of the petitioner for an offense
not work connected in relation to his official position in the
government service.
The main issue posed for resolution is whether a civil service
employee can be dismissed from the government service for
an offense which is not work-related or which is not
connected with the performance of his official duty.
Remolona likewise imputes a violation of his right to due
process during the preliminary investigation because he was
not assisted by counsel. He claims that the extra-judicial
admission allegedly signed by him is inadmissible because he
was merely made to sign a blank form. He also avers that his
motion for new trial should be granted on the ground that
the transcript of stenographic notes taken during the hearing
of the case before the Regional Office of the CSC was not
forwarded to the Court of Appeals. Finally, he pleads that the
penalty of dismissal with forfeiture of all benefits is too harsh
considering the nature of the offense for which he was
convicted, the length of his service in government, that this is
his first offense, and the fact that no damage was caused to
the government.
The submission of Remolona that his alleged extrajudicial
confession is inadmissible because he was not assisted by
counsel during the investigation as required under Section 12
paragraphs 1 and 3, Article III of the 1987 Constitution
deserves scant consideration
The right to counsel under Section 12 of the Bill of Rights is
meant to protect a suspect in a criminal case under custodial
investigation. Custodial investigation is the stage where the
police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect
who had been taken into custody by the police to carry out a
process of interrogation that lends itself to elicit incriminating
statements. It is when questions are initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. The right to counsel attaches only upon the
start of such investigation. Therefore, the exclusionary rule
under paragraph (2), Section 12 of the Bill of Rights applies
only to admissions made in a criminal investigation but not to
those made in an administrative investigation.xli[12]
While investigations conducted by an administrative body
may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an administrative
inquiry may or may not be assisted by counsel, irrespective of
the nature of the charges and of the respondent's capacity to
represent himself, and no duty rests on such body to furnish
the person being investigated with counsel. In an
administrative proceeding, a respondent has the option of
engaging the services of counsel or not. This is clear from the
provisions of Section 32, Article VII of Republic Act No. 2260
(otherwise known as the Civil Service Act) and Section 39,
paragraph 2, Rule XIV (on discipline) of the Omnibus Rules
Implementing Book V of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987). Thus, the right
to counsel is not always imperative in administrative
investigations because such inquiries are conducted merely
to determine whether there are facts that merit disciplinary
measure against erring public officers and employees, with
the purpose of maintaining the dignity of government service.
As such, the hearing conducted by the investigating authority
is not part of a criminal prosecution.xlii[13]
In the case at bar, Remolona was not accused of any crime in
the investigation conducted by the CSC field office. The
investigation was conducted for the purpose of ascertaining
the facts and whether there is a prima facie evidence
sufficient to form a belief that an offense cognizable by the
CSC has been committed and that Remolona is probably
guilty thereof and should be administratively charged.
Perforce, the admissions made by Remolona during such
investigation may be used as evidence to justify his dismissal.
The contention of Remolona that he never executed an extra-
judicial admission and that he merely signed a blank form
cannot be given credence. Remolona occupies a high
position in government as Postmaster at Infanta, Quezon
and, as such, he is expected to be circumspect in his actions
specially where he is being administratively charged with a
grave offense which carries the penalty of dismissal from
service.
Remolona insists that his dismissal is a violation of his right to
due process under Section 2(3), Article XI (B) of the
Constitution which provides that no officer or employee in
the Civil Service shall be removed or suspended except for
cause. Although the offense of dishonesty is punishable
under the Civil Service law, Remolona opines that such act
must have been committed in the performance of his
function and duty as Postmaster. Considering that the charge
of dishonesty involves the falsification of the certificate of
rating of his wife Nery Remolona, the same has no bearing on
his office and hence, he is deemed not to have been
dismissed for cause. This proposition is untenable.
It cannot be denied that dishonesty is considered a grave
offense punishable by dismissal for the first offense under
Section 23, Rule XIV of the Rules Implementing Book V of
Executive Order No. 292. And the rule is that dishonesty, in
order to warrant dismissal, need not be committed in the
course of the performance of duty by the person charged.
The rationale for the rule is that if a government officer or
employee is dishonest or is guilty of oppression or grave
misconduct, even if said defects of character are not
connected with his office, they affect his right to continue in
office. The Government cannot tolerate in its service a
dishonest official, even if he performs his duties correctly and
well, because by reason of his government position, he is
given more and ample opportunity to commit acts of
dishonesty against his fellow men, even against offices and
entities of the government other than the office where he is
employed; and by reason of his office, he enjoys and
possesses a certain influence and power which renders the
victims of his grave misconduct, oppression and dishonesty
less disposed and prepared to resist and to counteract his evil
acts and actuations. The private life of an employee cannot
be segregated from his public life. Dishonesty inevitably
reflects on the fitness of the officer or employee to continue
in office and the discipline and morale of the service.xliii[14]
The principle is that when an officer or employee is
disciplined, the object sought is not the punishment of such
officer or employee but the improvement of the public
service and the preservation of the publics faith and
confidence in the government.xliv[15]
The general rule is that where the findings of the
administrative body are amply supported by substantial
evidence, such findings are accorded not only respect but
also finality, and are binding on this Court.xlv[16] It is not for
the reviewing court to weigh the conflicting evidence,
determine the credibility of witnesses, or otherwise
substitute its own judgment for that of the administrative
agency on the sufficiency of evidence.xlvi[17] Thus, when
confronted with conflicting versions of factual matters, it is
for the administrative agency concerned in the exercise of
discretion to determine which party deserves credence on
the basis of the evidence received.xlvii[18] The rule,
therefore, is that courts of justice will not generally interfere
with purely administrative matters which are addressed to
the sound discretion of government agencies unless there is a
clear showing that the latter acted arbitrarily or with grave
abuse of discretion or when they have acted in a capricious
and whimsical manner such that their action may amount to
an excess of jurisdiction.xlviii[19]
We have carefully scrutinized the records of the case below
and we find no compelling reason to deviate from the
findings of the CSC and the Court of Appeals. The written
admission of Remolona is replete with details that could have
been known only to him. No ill-motive or bad faith was ever
imputed to Director Pasion who conducted the investigation.
The presumption that official duty has been regularly
performed remains unrebutted.
The transmittal of the transcript of stenographic notes taken
during the formal hearing before the CSC is entirely a matter
of discretion on the part of the Court of Appeals. Revised
Administrative Circular No. 1-95 of this Court clearly states
that in resolving appeals from quasi-judicial agencies, it is
within the discretion of the Court of Appeals to have the
original records of the proceedings under review transmitted
to it.xlix[20] Verily, the Court of Appeals decided the merits of
the case on the bases of the uncontroverted facts and
admissions contained in the pleadings filed by the parties.
We likewise find no merit in the contention of Remolona that
the penalty of dismissal is too harsh considering that there
was no damage caused to the government since the
certificate of rating was never used to get an appointment for
his wife, Nery Remolona. Although no pecuniary damage was
incurred by the government, there was still falsification of an
official document that constitutes gross dishonesty which
cannot be countenanced, considering that he was an
accountable officer and occupied a sensitive position.l[21]
The Code of Conduct and Ethical Standards for Public Officials
and Employees enunciates the State policy of promoting a
high standard of ethics and utmost responsibility in the public
service.li[22]
WHEREFORE, the decision appealed from is hereby
AFFIRMED in toto.
SO ORDERED.






G.R. No. 96602 November 19, 1991
EDUARDO ARROYO, JR., petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. 96715 November 19, 1991
RUBY VERA-NERI, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE
COURT OF APPEALS, respondents.
Efren C. Carag for Eduardo C. Arroyo, Jr.
Singson, Valdes & Associates for Ruby Vera Neri.
R E S O L U T I O N

FELICIANO, J.:p
In G.R. No. 96602, the Court summarized the facts of the case
in this manner:
Dr. Jorge B. Neri filed a criminal complaint
for adultery before the Regional Trial Court
(RTC), Branch 4, of Benguet against his wife,
Ruby Vera Neri, and Eduardo Arroyo
committed on 2 November 1982 in the City
of Baguio.
Both defendants pleaded not guilty and
after trial, the RTC convicted petitioner and
Mrs. Ruby Vera Neri of adultery as defined
under Article 333 of the Revised Penal
Code.
The essential facts of the case, as found by
the trial court and the Court of Appeals, are
as follows:
... On November 2, 1982,
accused, Mrs. Ruby Vera
Neri in the company of
Mrs. Linda Sare and
witness Jabunan, took the
morning plane to Baguio.
Arriving at around 11:00
a.m., they dropped first at
the house of Mrs. Vera,
mother of Ruby Vera at
Crystal Cave, Baguio City
then proceeded to the
Mines View Park
Condominium of the Neri
spouses. At around 7:00 o'
clock in the evening,
accused Eduardo Arroyo
arrived at the Neris'
condominium. Witness
opened the door for
Arroyo who entered, he
went down to and
knocked at the master's
bedroom where accused
Ruby Vera Neri and her
companion Linda Sare
were. On accused Ruby
Vera Neri's request, Linda
Sare left the master's
bedroom and went
upstairs to the sala
leaving the two accused.
About forty-five minutes
later, Arroyo Jr. came up
and told Linda Sare that
she could already come
down. Three of them,
thereafter, went up to the
sala then left the
condominium. (Court of
Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the
Court of Appeals' Decision. Petitioner Ruby Vera Neri also
moved for reconsideration or a new trial, contending that a
pardon had been extended by her husband, private complain
ant Dr. Jorge B. Neri, and that her husband had later con
traded marriage with another woman with whom he is
presently co-habiting. Both motions were denied by the Court
of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602)
dated 8 February 1991 which this court denied in a
Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for
Review (G.R. No. 96715) dated 19 February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 1
May 1991 and a motion dated 23 May 1991 for consolidation
o G.R. No. 96602 with G.R. No. 96715.
On 3 June 1991, G.R. No. 96715 was consolidated with G.R
No. 96602 in the Third Division in accordance with long-stand
ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case
which was then assigned to the ponente for the writing of the
Court's Resolution. 2
On 26 August 1991, Dr. Neri filed a manifestation, dated 14
May 1991, 3 praying that the case against petitioners be
dismissed as he had "tacitly consented" to his wife's infidelity.
4
Petitioners then filed their respective motions praying for the
dismissal or for the granting of new trial of the case claiming
a basis for their motions Dr. Neri's manifestation. The
Solicitor General was then asked to comment on the
manifestation; hi comment was filed with this Court on 18
October 1991. 5
In October 1991, the consolidated cases were, again in
accordance with long-standing practice of the Court, assigned
to the First Division upon the assignment of the ponente to
that division. On 4 November 1991, the consolidated cases
were re deliberated upon by the members of the First
Division who reached the same conclusion as the members of
the Third Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602,
petitioner Arroyo made the following contentions:
1. Dr. Neri's affidavit of desistance which
states that the case was filed out of "pure
misunderstanding' raises questions as to
the truth of the alleged admission made by
Mrs. Neri;
2. The other prosecution witnesses'
corroborative testimonies merely proved
the existence of an illicit affair but not that
adultery was committed on the date and
place in question;
3. Mrs. Neri's separate petition for review
raised the issue of Dr. Neri's alleged
subsequent marriage to another woman
which, if proven would preclude either of
the spouses from filing charges of adultery
or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following
errors to the Court of Appeals:
1. The Honorable Court of Appeals gravely
erred in not granting the motion for
reconsideration and/or new trial of the
petitioner;
2. The Honorable Court of Appeals gravely
erred by violating the constitutional rights
of petitioner against self-incrimination;
3. The Honorable Court of Appeals erred in
failing to take into consideration the
material inconsistencies of the testimony of
the complaining witness; and
4. The Honorable Court of Appeals gravely
erred in discarding medical testimony as to
the physical impossibility of the petitioner
to have committed the crime charged. 6
The issues in the consolidated cases may be summarized as
follows:
1. Whether or not Dr. Neri's affidavit of
desistance is sufficient to cast reasonable
doubts on his credibility;
2. Whether or not Mrs. Neri's constitutional
right against self-incrimination had been
violated;
3. Whether or not Dr. Neri's alleged extra-
marital affair precludes him from filing the
criminal complaint on the ground of pari
delicto; and
4. Whether or not Dr. Neri's manifestation
is sufficient basis for the granting of a new
trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court
believes that petitioner Arroyo has failed to show any ground
that would warrant the Court reversing its Resolution dated
24 April 1991; and on the
2. Petition for Review docketed as G.R. No. 96715, the Court
considers that petitioner Ruby Vera Neri has failed to show
reversible error on the part of the Court of Appeals in issuing
its Decision dated 21 May 1990 and its Resolution, dated 18
December 1990.
Petitioner Arroyo did not convince this Court in G.R. No.
96602 to dismiss the criminal case on the basis of Dr. Neri's
pardon. He, together with petitioner Neri, now cites the same
affidavit in the effort to cast doubts on the credibility of Dr.
Neri's testimony given before the trial court. However, in the
Court's Resolution, dated 24 April 1991, dismissing the
Petition for certiorari in G.R. No. 96602, the Court held that:
It has been our constant holding that:
In certiorari proceedings
under Rule 45, the
findings of fact of the
lower court as well its
conclusions on credibility
of witnesses are generally
not disturbed, the
question before the court
being limited to questions
of law (Rule 45, Sec. 2).
Specifically, the
conclusions of the trial
court on the credibility of
witnesses are given
considerable weight, since
said court is in the best
position to observe the
demeanor, conduct and
attitude of witnesses at
the trial. (Aguirre v.
People, 155 SCRA 337
[1987]; emphasis
supplied)
Thus, the claim that Dr. Neri's testimony is
incredible is unavailing at this stage.
Besides, the Court does not believe that
such an admission by an unfaithful wife was
inherently improbable or impossible. 7
(Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had
likewise ruled on the claim that Mrs. Neri's constitutional
right against self-incrimination had been disregarded when
her admission to her husband in the privacy of their conjugal
home that she had indeed lain with petitioner Arroyo was
taken into account by the trial court, to wit:
Dr. Jorge Neri was also presented as a
witness and he testified that sometime in
December of 1982, he surprised his wife
while she was looking at some photographs
in their bedroom in their house in
Dasmarias Village, Makati. Accused Ruby
Vera Neri then turned pale and started for
the door. Struck by this unusual behavior,
Dr. Neri started looking around the dressing
room and he came upon a Kodak envelope
with film negatives inside. He took the
negatives for printing and a few days later,
armed with the photographs which showed
his wife in intimate bedroom poses with
another man, confronted Ruby Vera Neri. It
was at this point that Ruby Vera Neri
admitted to her husband that Eduardo
Arroyo was her lover and that they went to
bed in Baguio on 2 and 3 November 1982.
xxx xxx xxx
As to the constitutional issue, we held in
Gamboa v. Cruz (162 SCRA 642 [1988]) that:
The right to counsel
attaches upon the start of
an investigation, i.e.,
when the investigating
officer starts to ask
questions to elicit
information and/or
confession or admissions
from respondent-
accused.(emphasis
supplied)
In the present case, Dr. Neri was not a
peace officer nor an investigating officer
conducting a custodial interrogation, hence,
petitioner cannot now claim that Mrs.
Neri's admission should have been rejected.
In the case of Aballe v. People (183 SCRA
196 [1990]), the Court held:
The declaration of an
accused expressly
acknowledging his guilt of
the offense may be given
in evidence against him.
The rule is that any
person, otherwise
competent as witness,
who heard the confession,
is competent to testify as
to substance of what he
heard if he heard and
understood all of it. An
oral confession need not
be repeated verbatim, but
in such case it must be
given in its substance.
Compliance with the
constitutional procedures
on custodial investigation
is not applicable to a
spontaneous statement,
not elicited through
questioning, but given in
an ordinary manner,
whereby the accused
orally admitted having
slain the victim.
We also note that the husband is not
precluded under the Rules of Court from
testifying against his wife in criminal cases
for a crime committed by one against the
other (Section 22, Rule 129, Revised Rules
of Court).
In short, the trial court and the Court of
Appeals did not err in admitting Dr. Neri's
testimony as he was a competent witness.
Neither was said testimony rendered
inadmissible by the constitutional provision
on the right to remain silent and the right to
counsel of a "person under investigation for
the commission of an offense."
Petitioner next claims that the trial court
erred in convicting him on the basis of the
failure of Ruby Vera Neri to take the witness
stand. In People v. Gargoles (83 SCRA 282
[1978]), it was held that:
We have held that an
accused has the right to
decline to testify at the
trial without having any
inference of guilt drawn
from his failure to go on
the witness stand. Thus, a
verdict of conviction on
the basis, solely or mainly,
of the failure or refusal of
the accused to take the
witness stand to deny the
charges against him is a
judicial heresy which
cannot be countenanced.
Invariably, any such
verdict deserves to be
reserved.
Such situation does not
obtain, however, in the
case at bar. For while the
trial court took note of the
failure of defendant to
take the witness stand to
deny the charge against
him, the same was not the
main reason, much less
the sole basis, of the trial
court in holding, as
credible the testimony of
complainant, and in
ultimately concluding that
the crime of rape had
been committed by the
accused-appellant.
(Emphasis supplied)
Examination of the trial court decision here
shows that said failure to testify was not
the sole nor the main basis of the
conviction. Aside from accused's failure to
deny Dr. Neri's testimony, the trial court
also considered the testimonies of Dr. Neri
and other prosecution witnesses and the
photographs of the two accused in intimate
poses (and three of which showed them half
naked in bed). 8 (Emphasis supplied)
We turn to the contention that pari-delicto "is a valid defense
to a prosecution for adultery and concubinage and that in
such a case "it would be only a hypocritical pretense for such
spouse to appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner
Neri's position. In the Guinucud case, the Court found that
the complaining husband, by entering into an agreement with
his wife that each of them were to live separately and could
marry other persons and by filing complaint only about a year
after discovering his wife's infidelity, had "consented to, and
acquiesced in, the adulterous relations existing between the
accused, and he is, therefore, not authorized by law to
institute the criminal proceedings." In fine, the Guinucud case
refers not to the notion of pari delicto but to consent as a bar
to the institution of the criminal proceedings. In the present
case, no such acquiescence can be implied: the accused did
not enter into any agreement with Dr. Neri allowing each
other to marry or cohabit with other persons; and Dr. Neri
promptly filed his complaint after discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the
Revised Penal Code, but only in Article 1411 of the Civil Code.
The Court notes that Article 1411 of the Civil Code relates
only to contracts with illegal consideration.10 The case at bar
does not involve any illegal contract which either of the
contracting parties is now seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which
reads:
2. Even before I filed the complaint in court
and before the pardon that I had extended
to my wife and her co-accused, I was in
reality aware of what was going on
between and therefore, tacitly consented to
my wife's infidelity, ...
should result in the dismissal of the case or, at the very least,
in the remand of the case for new trial claiming that in People
v. Camara 11 it was held that "the consent of the spouse is
valid defense to a prosecution for adultery and/or
concubinage." 12
Dr. Neri's manifestation amounts in effect to an attempted
recantation of testimony given by him before the trial court.
It is settled that not all recantations by witnesses should
result in the granting of a new trial. 13 In People v. Follantes
and Jacinto, 14 it was held that:
... [R]ecantation by witnesses called on
behalf of the prosecution does not
necessarily entitle defendant to a new trial.
The question whether a new trial shall be
granted on this ground depends on all the
circumstances of the case, including the
testimony of the witnesses submitted on
the motion for the new trial. Moreover,
recanting testimony is exceedingly
unreliable, and it is the duty of the court to
deny a new trial where it is not satisfied
that such testimony is true. ... 15 (Emphasis
supplied)
Succinctly put, the Court doubts the truthfulness and
reliability of Dr. Neri's belated recantation. Dr. Neri had two
(2) previous occasions to make the claim contained in his
manifestation: first, in the compromise agreement 16 dated
16 February 1989 submitted before the Regional Trial Court
of Makati, Branch 149 in relation to Civil Case No. M-001; and
second, his affidavit 17 dated 23 November 1988 submitted
to the Court of Appeals. Instead, however, these two (2)
documents merely stated that Dr. Neri had pardoned
petitioners 18 and the complaint was filed out of "pure
misunderstanding" 19 without hinting that Dr. Neri knew of
the adulterous relations. It appears to the Court that Dr.
Neri's manifestation was so worded as to attempt to cure the
deficiency noted by the Court in the two (2) previous
documents in the disposition of the petition in G.R. No.
96602:
Petitioner will find no solace in the cases he
cites, in support of his prayer to dismiss the
case based on Dr. Neri's pardon. People v.
Camara (100 Phil. 1098 (1957) is
inapplicable as the affidavit there expressly
stated that the wife had consented to the
illicit relationship. In Gomez v. Intermediate
Appellate Court (135 SCRA 620 [1985]) a
case involving estafa, the criminal case was
dismissed as the affidavit of desistance
specifically stated that the accused had
nothing to do whatsoever with the crime
charged. In the present case, the pardon did
not state that Dr. Neri had consented to the
illicit relationship petitioner and Mrs. Neri.
Neither did it state that the case was filed
against the wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991,
which incidentally is also the date of petitioner Arroyo's
motion for reconsideration, it was subscribed to only on 23
August 1991.
Petitioner Neri also contends that Dr. Neri's affidavit of
desistance and the compromise agreement operate as a
pardon meriting a new trial. The Court notes that the cases of
People v. Camara (supra) and Gomez v. Intermediate
Appellate Court (supra) were the very same cases which
petitioner Arroyo cited in G.R. No. 96602 which the Court has
already held to be inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised
Penal Code which provides:
ART. 344. ... The crime of adultery and
concubinage shall not be prosecuted except
upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal
prosecution without including both parties,
if they are both alive, nor in any case, if he
shall have consented or pardoned the
offenders.
xxx xxx xxx
While there is a conceptual difference between consent and
pardon in the sense that consent is granted prior to the
adulterous act while pardon is given after the illicit affair, 21
nevertheless, for either consent or pardon to benefit the
accused, it must be given prior to the filing of a criminal
complaint. 22 In the present case, the affidavit of desistance
was executed only on 23 November 1988 while the
compromise agreement was executed only on 16 February
1989, after the trial court had already rendered its decision
dated 17 December 1987 finding petitioners guilty beyond
reasonable doubt. Dr. Neri's manifestation is both dated and
signed after issuance of our Resolution in G.R. No. 96602 on
24 April 1991.
It should also be noted that while Article 344 of the Revise
Penal Code provides that the crime of adultery cannot be
prosecuted without the offended spouse's complaint, once
the complaint has been filed, the control of the case passes to
the public prosecutor. 23 Enforcement of our law on adultery
is not exclusively, nor even principally, a matter of vindication
of the private honor of the offended spouse; much less is it a
matter merely of personal or social hypocrisy. Such
enforcement relates, more importantly, to protection of the
basic social institutions of marriage and the family in the
preservation of which the State has the strongest interest;
the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set
forth the following basic state policy:
The State recognizes the sanctity of family
life and shall protect find strengthen the
family as a basic autonomous social
institution ...
The same sentiment has been expressed in the Family Code o
the Philippines in Article 149:
The family, being the foundation of the
ration, is a basic social institution which
public policy cherishes and protects.
Consequently, family relations are governed
by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect.
In U.S. v. Topio, 24 the Court held that:
... The husband being the head of the family
and the only person who could institute the
prosecution and control its effects, it is
quite clear that the principal object in
penalizing the offense by the state was to
protect the purity of the family and the
honor of the husband, but now the conduct
of the prosecution, after it is once
commenced by the husband, and the
enforcement of the penalties imposed is
also a matter of public policy in which the
Government is vitally interested to the
extent of preserving the public peace and
providing for the general welfare of the
community. ... 25 (Emphasis supplied)
As to the claim that it was impossible for petitioner Neri to
engage in sexual intercourse a month after her ceasarian
operation, the Court agrees with the Solicitor General that
this is a question of fact which cannot be raised at this stage.
In any case, we find no reason to overturn the Court of
Appeals' finding that "a woman who has the staying power to
volley tennis bags for fifteen minutes at the [John Hay] tennis
court would not be incapable of doing the sexual act" which
ball play was followed, as noted by the Court of Appeals "by a
picture taking of both accused in different intimate poses." 26
ACCORDINGLY, the Motion for Reconsideration in G.R. No.
96602 is hereby DENIED for lack of merit and this denial is
FINAL. The Petition for Review in G.R. No. 96715 is hereby
similarly DENIED for lack of merit. Costs against petitioners.
Let a copy of this Resolution and of Dr. Neri's Manifestation
and Motion subscribed on 23 August 1991 be forwarded to
the Department of Justice for inquiry into the possible liability
of Dr. Neri for perjury.
G.R. No. 144293 December 4, 2002
JOSUE R. LADIANA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
PANGANIBAN, J.:
The Constitution bars the admission in evidence of any
statement extracted by the police from the accused without
the assistance of competent and independent counsel during
a custodial investigation. However, a counter-affidavit
voluntarily presented by the accused during the preliminary
investigation, even if made without the assistance of counsel,
may be used as evidence against the affiant.
The Case
Before us is a Petition for Review under Rule 45 of the Rules
of Court, assailing the April 10, 2000 Decision
1
and August 4,
2000 Resolution
2
of the Sandiganbayan (First Division) in
Criminal Case No. 16988. The dispositive portion of the
assailed Decision reads as follows:
"WHEREFORE, judgment is hereby rendered finding accused
JOSUE R. LADIANA GUILTY beyond reasonable doubt of the
crime of homicide and, in the absence of any modifying
circumstance, sentencing the said accused to: (a) suffer an
indeterminate sentence of imprisonment of ten (10) years of
prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, as maximum[;] (b) suffer all
the appropriate accessory penalties consequent thereto; (c)
indemnify the heirs of the victim, Francisco San Juan, in the
total amount of Fifty Six Thousand Five Hundred Pesos
(P56,500.00); and (d) pay the costs."
3

The assailed Resolution denied petitioners Motion for
Reconsideration.
Petitioner was originally charged with murder before the
Sandiganbayan in an Information
4
dated August 5, 1991.
However, the anti-graft court issued an Order
5
dated October
14, 1991, noting that "besides the allegation that the crime
was allegedly committed by the accused while he was taking
advantage of his official position, nothing else is in the
Information to indicate this fact so that, as the Information
stands, nothing except a conclusion of fact exists to vest
jurisdiction [in] this Court over the accused and over the
crime for which he is charged."
Further, the Order gave the government sufficient time to
amend the Information to show adequate facts to vest the
Sandiganbayan with jurisdiction over the case. Subsequently,
an Amended Information,
6
still charging petitioner with
murder, was filed on April 1, 1992. The accusatory portion
reads as follows:
"That on or about the 29th day of December 1989, in the
Municipality of Lumban, Laguna, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then a member of the
Integrated National Police (INP now PNP) assigned at the
Lumban Police Station, Lumban, Laguna, acting in relation to
his duty which is primarily to enforce peace and order within
his jurisdiction, taking advantage of his official position
confronted Francisco San Juan why the latter was removing
the steel pipes which were previously placed to serve as
barricade to prevent the entry of vehicles along P. Jacinto
Street, Barangay Salac, Lumban, Laguna, purposely to insure
the safety of persons passing along the said street and when
Francisco San Juan told the accused that the latter has no
business in stopping him, said accused who was armed with a
firearm, with intent to kill and with treachery, did then and
there willfully, unlawfully and feloniously attack and sho[o]t
Francisco San Juan with the firearm hitting Francisco San Juan
at his head and neck inflicting upon him fatal wounds thereby
causing the death of Francisco San Juan."
7

During his arraignment on May 8, 1992, petitioner, assisted
by his counsel de parte,
8
pled not guilty.
9
After due trial, the
Sandiganbayan found him guilty of homicide, not murder.
The Facts
In their Memoranda, both the prosecution and the defense
substantially relied upon the Sandiganbayans narration of
the facts as follows:
"The prosecution presented five (5) witnesses, namely:
Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr. Rogelio M.
Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their
respective testimonies, in essence are as follows, to wit:
"1. CARIDAD MARGALLO SAN JUAN (hereinafter,
Caridad) declared that she is the wife of Francisco
San Juan (hereinafter Francisco), the victim in the
case at bar. Caridad testified that Francisco was the
Barangay Captain of Barangay Salac, Lumban,
Laguna, until he was shot and killed by accused
Ladiana, who happens to be also a distant relative of
the decedent.
"Caridad recounted that, on December 29,
1989, she was in her house when an
unidentified woman came and told her that
her husband was killed by accused Ladiana.
She immediately called up her sister-in-law
before rushing to Jacinto Street where the
gruesome incident allegedly transpired.
Thereat, many people were milling around,
and Caridad saw the lifeless body of
Francisco lying in the middle of the road
and being examined by [SPO2] Percival A.
Gabinete.
"Caridad recalled that it was around 11:00
oclock a.m. when she reached the place of
the subject incident. At that point in time,
she was not even allowed by the police to
touch, much less get near to, the cadaver of
Francisco. Caridad, expectedly, was crying
and one of her aunts advised her to go
home.
"Caridad maintained that she was aware
that her husband was killed by accused
Ladiana because this was what the woman
actually told her. Moreover, accused
Ladiana had given himself up to the police
authorities.
"Caridad went on to narrate that, on
December 30, 1989, she was at the police
station, where she gave her written
statement before police investigator PFC
Virgilio Halili (hereinafter, Halili).
"Additionally, Caridad presented the Death
Certificate of her husband and testified that
he was eventually buried at the Lumban
Cemetery. She declared that she had
incurred about Twenty Thousand Pesos
(P20,000.00) for the funeral, burial and
other incidental expenses by reason of the
death of Francisco.
"On cross-examination, Caridad testified
that, on December 29, 1989, she was in her
house and that she did not hear any
gunshot between 10:30 and 11:00 oclock
a.m. Caridad also admitted she did not
witness the killing of her husband.
"On questions propounded by the Court,
Caridad narrated that her husband suffered
two gunshot wounds - one on the upper
right temple and the other on the left
cheek. However, Caridad stated that she
was told that the wounds were the entry
and the exit points. She also told the Court
that her husband was wearing short pants
at the time of his death and that she found
some bruises on his knees.
"Finally, Caridad recalled that, on the date
of the incident, her husband was with his
close friend, a certain Rodolfo Cabrera, and
some other persons, and that they went to
Jacinto Street to repair the steel humps
which were used to block the street during
school days for the protection and safety of
the school children.
"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR.
(hereinafter, CACALDA) declared that he is a
policeman assigned at the Lumban Police Station in
Lumban, Laguna. He has been designated as the
radio operator of the station since 1989.
"Cacalda recounted that, on December 29,
1989, at around 11:00 oclock a.m.,
somebody, whose name he could no longer
recall, reported to him about an existing
trouble along Jacinto Street in Barangay
Salac Cacalda responded by going to the
scene, where he was accompanied by
Alberto Mercado, a member of the CAGFIL.
Thereat, Cacalda saw the lifeless body of
Francisco lying face up on the road. Cacalda
did not examine the body of Francisco. He
left the place of the incident when [SPO2]
Percival A. Gabinete and other policemen
subsequently arrived.
"Cacalda had gathered from the people
milling around the body of Francisco that it
was accused Ladiana who shot and killed
Francisco. Cacalda immediately left to look
for accused Ladiana. However, he
eventually saw accused Ladiana already
inside the jail of the police station and
thereafter learned that said accused had
surrendered to the police authority.
"Cacalda recalled that he was later on
investigated by Halili because he was the
responding policeman who went to the
scene of the incident. Consequently,
Cacalda executed a written statement in
relation to the subject incident.
"On cross-examination, Cacalda testified
that he was a radio operator and not an
investigator of the police station. He also
testified that he did not witness the
incident subject matter of the case at bar.
"Cacalda went on to testify that the people
milling around the place of the incident told
him that accused Ladiana had already left.
Because of this development, Cacalda
proceeded to accused Ladianaa house but
was told that he had already gone to the
police station. Cacalda accordingly went to
the police station where he saw accused
Ladiana already locked inside the jail. He
also saw a stab wound on accused Ladianas
right bicep but he did not anymore ask him
how he sustained the said injury.
"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter,
Javan) declared that he is a physician and the
Municipal Health Officer of Lumban, Laguna.
"Javan recounted that he was the one who
performed the necropsy on the cadaver of
Francisco and that he had prepared the
corresponding reports and/or documents
relating thereto. Javan made a sketch
representing the anterior and posterior
views of the body of Francisco, and labeled
and placed red markings on the gunshot
wounds found on the said cadaver. The
marking Gunshot wound A is the point of
entry, which is one (1) centimeter in
diameter and situated two (2) inches
behind the left ear. The marking Gunshot
wound B is the point of exit of Gunshot
wound A, which is two (2) centimeters in
diameter and found above the right
cheekbone and one (1) inch below the right
eye. Javan also testified that there is
another gunshot wound and the point of
entry and exit are labeled as Gunshot
wound C and Gunshot wound D,
respectively. Gunshot wound D is one and
one-half (1-1/2) centimeters in diameter
and located at the left cheek, three and
one-half (3-1/2) centimeters below the left
eye, while Gunshot wound C is one (1)
centimeter in diameter and found at the
right lateral aspect of the neck, at the level
of the adams apple.
"According to Javan, the assailant must be
behind the victim when he inflicted
Gunshot wound A. As regards Gunshot
wound C, the assailant likewise must be
behind the victim, at a distance of more
than twenty-four (24) inches away.
"Lastly, Javan testified that he was not able
to retrieve any bullet during the
examination. However, judging from the
size of the wound and the point of entry,
Javan opined that the firearm used was
probably a caliber 38.
"On questions propounded by the Court,
Javan testified that Gunshot wound A
could have been fired first because the
trajectory is on the same level so much so
that the assailant and the victim could have
been both standing. Javan inferred that
Gunshot wound C could have been
inflicted while the victim was already falling
down. Javan then stressed that both
wounds are fatal in nature.
"4. SPO2 PERCIVAL AMBROSIO GABINETE
(hereinafter, Gabinete) declared that he is a police
officer and a resident of No. 4055 Villa Josefina
Subdivision, Sta. Cruz, Laguna.
"The testimony of Gabinete was
subsequently dispensed with, upon the
admission of the defense that he was part
of the group of policemen who proceeded
to the place of the subject incident and that
he found the body of Francisco lying along
the road. Additionally, the defense
admitted the existence of the receipt issued
by Funeraria de Mesa dated January 3, 1990
in the sum of Six Thousand Five Hundred
Pesos (P6,500.00).
"5. MARIO TALAVERA CORTEZ (hereinafter, Cortez)
declared that he is a retired Assistant Prosecutor of
Laguna.
"Prior to the conduct of the examination-in-
chief on Cortez, the defense counsel made
an admission as to the authorship,
authenticity, and voluntariness of the
execution of the counter-affidavit of
accused Ladiana, which was subscribed and
sworn to before Cortez. In said counter-
affidavit, accused Ladiana allegedly
admitted to making the fatal shots on
Francisco. However, accused Ladiana
allegedly did so in self-defense as Francisco
was then purportedly attacking accused
Ladiana and had, in fact, already inflicted a
stab wound on the arm of accused Ladiana.
"However, Cortez emphasized that he was
not the one who conducted the preliminary
investigation of the complaint which led to
the filing of the subject case. Additionally,
Cortez testified that he would not be able
to anymore recognize the face of the affiant
in the said counter-affidavit, but maintained
that there was a person who appeared and
identified himself as Josue Ladiana before
he affixed his signature on the counter-
affidavit.
"After the presentation of Cortez, the
prosecution filed its formal offer of
evidence and rested its case.
"On May 31, 1995, this Court issued a
resolution admitting all the documentary
evidence submitted by the prosecution.
"On August 20, 1996, accused Ladiana filed
a Motion for Leave of Court to File
Demurrer to Evidence dated August 16,
1995, claiming that: (i) a review of the
documentary and testimonial evidence
adduced by the prosecution allegedly failed
to show that the accused is guilty of the
offense charged; (ii) at best, the evidence
submitted by the prosecution are allegedly
hearsay in character, considering that the
supposed eyewitness in the person of
Rodolfo Cabrera was never presented in
court; and (iii) the prosecution was
allegedly merely able to prove the fact of
death of the victim, but not the identity of
the person who caused said death.
"On August 23, 1996, this Court issued an
Order of even date holding that the filing of
a demurrer to evidence is no longer
appropriate considering that accused
Ladiana received a copy of this Courts
resolution dated May 31, 1995 on the
admission of the prosecutions
documentary exhibits as early as May 25,
1995.
"On September 2, 1996, in view of his
perception that the evidence submitted by
the prosecution is allegedly inadequate to
sustain a conviction, accused Ladiana,
through counsel, waived his right to present
controverting evidence. Instead, he asked
for time to file a written memorandum.
Thus, both parties were given time within
which to do so, after which the case shall be
deemed submitted for resolution.
"Thereafter, this Court received on October
25, 1996 by mail the Memorandum for the
defense. As for the prosecution, it opted
not to file any."
10
(Citations omitted)
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the prosecution had been able
to establish the guilt of petitioner beyond reasonable doubt.
The court a quo held that his Counter-Affidavit,
11
in which he
had admitted to having fired the fatal shots that caused the
victims death,
12
may be used as evidence against him. It
underscored the admission made by the defense as to the
authorship, the authenticity and the voluntariness of the
execution of the Counter-Affidavit.
13
In short, it ruled that the
document had sufficiently established his responsibility for
the death of the victim. However, it found no evidence of
treachery; thus, it convicted him of homicide only.
14

Hence, this Petition.
15

Issues
In his Memorandum, petitioner raises the following issues for
this Courts consideration:
"I. Whether or not the Sandiganbayan may convict
the accused-petitioner beyond reasonable doubt of
the crime of homicide even in the absence of any
eyewitness who personally saw the sho[o]ting of the
victim by the accused, basing it only on the
testimony of the prosecutor who had administered
the oath on the Counter-affidavit filed by petitioner-
accused.
"II. Whether or not the prosecution has presented
proof beyond reasonable doubt to overcome the
constitutional presumption of innocence of the
accused and his right against self-incrimination on
the basis of the Counter-affidavit whose execution
was admitted by the counsel of the petitioner, but
not by the accused personally.
"III. Whether or not the Counter-affidavit of the
accused-petitioner which was considered by the
Sandiganbayan in its decision as similar to an
extrajudicial confession may [be] admitted against
him as evidenc[e] of guilt beyond reasonable doubt
even if he was not assi[s]ted then by counsel and
while he was under custodial investigation.
"IV. Whether or not the Sandiganbayan is
constitutionally and legally correct in issuing the
Order of August 23, 1996 denying the Motion for
Leave of Court to File Demurrer to Evidence dated
August 16, 1995 filed by the accused in accordance
with Sec. 15 of Rule 120 of the 1985 Rules on
Criminal Procedure in relation to Rule XXI of the
Revised Rules of Sandiganbayan.
"V. Whether or not accused is entitled to the
mitigating circumstance of voluntary surrender
which fact was admitted by the prosecution as it
even used the same as proof of the guilt of the
accused."
16

In short, petitioner raises the following questions in this
appeal: (1) whether the Counter-Affidavit he executed during
the preliminary investigation of this case is admissible proof
showing his complicity in the crime, (2) whether the
Sandiganbayan erred in denying his Motion for Leave to File a
Demurrer to Evidence, and (3) whether he is entitled to the
mitigating circumstance of voluntary surrender.
This Courts Ruling
The Petition is not meritorious.
First Issue:
Admissibility of Counter-Affidavit
Undeniably, the resolution of this case hinges mainly on the
admissibility of the Counter-Affidavit
17
submitted by
petitioner during the preliminary investigation. He argues
that no counsel was present when the Affidavit was
executed. In support of his argument, he cites the
Constitution thus:
"SEC. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
x x x x x x x x x
(3) Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence against
him."
18

It is well-settled that the foregoing legal formalities required
by the fundamental law of the land apply only to extra-
judicial confessions or admissions obtained during custodial
investigations.
19
Indeed, the rights enumerated in the
constitutional provision "exist only in custodial interrogations,
or in-custody interrogation of accused persons."
20

Custodial interrogation is the questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.
21

In the present case, petitioner admits that the questioned
statements were made during the preliminary investigation,
not during the custodial investigation. However, he argues
that the right to competent and independent counsel also
applies during preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a
proceeding to determine whether there is sufficient ground
to engender a well-founded belief that a crime has been
committed, and that the respondent is probably guilty
thereof and should be held for trial.
22

Evidently, a person undergoing preliminary investigation
before the public prosecutor cannot be considered as being
under custodial investigation. In fact, this Court has
unequivocally declared that a defendant on trial or under
preliminary investigation is not under custodial
interrogation.
23
It explained as follows:
"His [accused] interrogation by the police, if any
there had been would already have been ended at
the time of the filing of the criminal case in court (or
the public prosecutors office). Hence, with respect
to a defendant in a criminal case already pending in
court (or the public prosecutors office), there is no
occasion to speak of his right while under custodial
interrogation laid down by the second and
subsequent sentences of Section 20, Article IV of the
1973 Constitution [now Section 12, Article III of the
1987 Constitution], for the obvious reason that he is
no longer under custodial interrogation."
24

There is no question that even in the absence of counsel, the
admissions made by petitioner in his Counter-Affidavit are
not violative of his constitutional rights. It is clear from the
undisputed facts that it was not exacted by the police while
he was under custody or interrogation. Hence, the
constitutional rights of a person under custodial investigation
as embodied in Article III, Section 12 of the 1987 Constitution,
are not at issue in this case.
However, the accused -- whether in court or undergoing
preliminary investigation before the public prosecutor --
unquestionably possess rights that must be safeguarded.
These include: 1) the right to refuse to be made witnesses; 2)
the right not to have any prejudice whatsoever imputed to
them by such refusal; 3) the right to testify on their own
behalf, subject to cross-examination by the prosecution; and
4) while testifying, the right to refuse to answer a specific
question that tends to incriminate them for some crime other
than that for which they are being prosecuted.
25

We do not, however, agree with the Sandiganbayans
characterization of petitioners Counter-Affidavit as an
extrajudicial confession. It is only an admission. Sections 26
and 33 of Rule 130 of the Revised Rules on Evidence
distinguish one from the other as follows:
"SEC. 26. Admissions of a party. The act, declaration or
omission of a party as to a relevant fact may be given in
evidence against him.
"SEC. 33. Confession. The declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in
evidence against him."
In a confession, there is an acknowledgment of guilt; in an
admission, there is merely a statement of fact not directly
involving an acknowledgment of guilt or of the criminal intent
to commit the offense with which one is charged.
26
Thus, in
the case at bar, a statement by the accused admitting the
commission of the act charged against him but denying that it
was done with criminal intent is an admission, not a
confession.
27

The Counter-Affidavit in question contains an admission that
petitioner actually shot the victim when the latter was
attacking him. We quote the pertinent portion:
"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan
ako sa may leeg ng aking suot na T-shirt upang ako ay muling
saksakin; sa dahilang hindi ako makatakbo o makaiwas sa
kabila ng aking pananalag hanggang magpaputok ako ng
pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na
siya ay tinamaan;"
28

Through the above statement, petitioner admits shooting the
victim -- which eventually led to the latters death -- but
denies having done it with any criminal intent. In fact, he
claims he did it in self-defense. Nevertheless, whether
categorized as a confession or as an admission, it is
admissible in evidence against him.
Further, we do not doubt the voluntariness of the Counter-
Affidavit. Petitioner himself submitted it to the public
prosecutor to justify his actions in relation to the charges
hurled against him. It escapes this Court how he can
cavalierly deny a document that he has voluntarily submitted
and originally relied upon in his defense.
In general, admissions may be rebutted by confessing their
untruth or by showing they were made by mistake. The party
may also establish that the response that formed the
admission was made in a jocular, not a serious, manner; or
that the admission was made in ignorance of the true state of
facts.
29
Yet, petitioner never offered any rationalization why
such admissions had been made, thus, leaving them
unrebutted. In addition, admissions made under oath, as in
the case at bar, are evidence of great weight against the
declarant. They throw on him the burden of showing a
mistake.
30

Petitioner contends that nowhere in the transcripts of this
case can it be found that he has admitted to the authorship,
the authenticity or the voluntariness of the Counter-Affidavit.
We quote verbatim the proceedings in the Sandiganbayan:
"PJ GARCHITORENA
Well, he will identify the person who took the oath
before him. Will you deny that it was your client who
took the oath before the Fiscal at the preliminary
investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
So in that case we will have no question about the
authorship, authenticity and the voluntariness of the
execution of the counter-affidavit dated July 31,
1990? Companiero?
ATTY ILAGAN
Admitted, your Honor."
31

The admissions of petitioner made through his counsel
cannot be any clearer. To be sure, the unbroken stream of
judicial dicta is that, in the conduct of their case, clients are
bound by the actions of their counsels, save when the latters
negligence is so gross, reckless and inexcusable that the
former are deprived of their day in court.
32
Also, clients, being
bound by the actions of their counsels, cannot complain that
the result of the litigation might have been different had their
lawyers proceeded differently.
33
A counsel may err as to the
competency of witnesses, the sufficiency and the relevance
of evidence, the proper defense, the burden of proof, the
introduction or the withholding of witnesses or pieces of
evidence, or the manner of arguing the case. This Court,
however, has ruled several times that those are not even
proper grounds for a new trial, unless the counsels
incompetence is so gross that the clients are prevented from
fairly presenting their case.
34

Having admitted that he had fatally shot the victim, petitioner
had the duty of showing that the killing was justified, and that
the latter incurred no criminal liability therefor.
35
Petitioner
should have relied on the strength of his own evidence and
not on the weakness of that for the prosecution. Even if his
evidence be weak, it cannot be disbelieved after the accused
has admitted the killing.
36

Petitioner argues that it was the prosecution that indirectly
raised the issue of self-defense. Hence, he could not be
bound by it. This argument deserves scant consideration. As
discussed earlier, the declarations contained in his Counter-
Affidavit are admissions that may be used as evidence against
him.
37
The Sandiganbayan did not unfairly presume that he
had indeed raised the theory of self-defense, because this
argument had already been laid out in his Counter-Affidavit.
No presumption was necessary, because the admission was
clear and unequivocal.
Neither do we believe petitioners claim that the anti-graft
court "miserably failed to give equal effect or treatment to all
the allegations found therein (Counter-Affidavit) choosing
deliberately and without reasonable basis the parts which are
incriminating in character, and ignoring without sufficient
legal basis the exculpatory assertions of the accused."
38

The unsubstantiated and uncorroborated statements of
petitioner in his Counter-Affidavit are utterly insufficient to
discharge his burden of proving that the act of killing was
justified. It is hornbook doctrine that self-defense must be
proved with certainty by sufficient, satisfactory and
convincing evidence that excludes any vestige of criminal
aggression on the part of the person invoking it.
39
It cannot
be entertained if it is uncorroborated by any separate and
competent evidence, and it is also doubtful.
40
The question
whether the accused acted in self-defense is essentially a
question of fact properly evaluated by the lower court; in this
case, the Sandiganbayan.
41

By itself, the Counter-Affidavit miserably fails to establish the
requisites of self-defense enumerated in the law.
42
Had
petitioner been more vigilant in protecting his rights, he could
have presented clear and cogent evidence to prove those
elements. But, as found by the court a quo, he not only failed
to discharge the burden of proving the existence of the
justifying circumstance of self-defense; he did not even
bother to present any evidence at all.
43
So, we do not see
how the Sandiganbayan could have been selective in its
treatment of his Counter-Affidavit.
Verily, if the accused fails to discharge the burden of proving
the existence of self-defense or of any other circumstance
that eliminates criminal liability, his conviction shall of
necessity follow, on the basis of his admission of the killing.
44

Upholding this principle does not in any way violate his right
to be presumed innocent until proven guilty. When he
admitted to having killed the victim, the burden of proving his
innocence fell on him. It became his duty to establish by clear
and convincing evidence the lawful justification for the killing.
Therefore, petitioner can no longer invoke his constitutional
right to be presumed innocent of the crime charged.
45
As far
as he is concerned, homicide has already been established.
The fact of death and its cause were established by his
admissions coupled with the other prosecution evidence
including the Certificate of Death,
46
the Certificate of Post-
Mortem Examination
47
and the Medico-Legal Findings.
48
The
intent to kill is likewise presumed from the fact of death.
49

Second Issue:
Denial of Motion for Leave to File Demurrer
Petitioner then argues that the Sandiganbayan erred in not
giving due course to his Motion for Leave to File Demurrer to
Evidence. He brands this denial as legally and constitutionally
wrong.
50

We disagree. Prior leave to file a demurrer to evidence is
discretionary upon the trial court.
51
And, unless there is grave
abuse amounting to lack or excess of jurisdiction in its denial,
the trial courts resolution may not be disturbed.
52

Final Issue:
Voluntary Surrender
After vigorously arguing against his own Counter-Affidavit,
petitioner, in a surprising change of tenor, implores this Court
to consider his voluntary surrender to the police authorities
as a mitigating circumstance. He argues that two of the
prosecution witnesses testified that he had surrendered to
the police authorities after the shooting incident.
53
To
buttress his argument, he contends that the "main reason for
his voluntary surrender is that he sincerely believe[d] that he
was legally justified in defending himself as a policeman when
he fought the victim after he was attacked by the latter."
54
It
goes without saying that this statement only reaffirms the
admissions contained in his Counter-Affidavit, which he so
vehemently tried to discredit.
For voluntary surrender to mitigate criminal liability, the
following elements must concur: 1) the offender has not been
actually arrested, 2) the offender surrenders himself to a
person in authority or to the latters agent, and 3) the
surrender is voluntary.
55
To be sufficient, the surrender must
be spontaneous and made in a manner clearly indicating the
intent of the accused to surrender unconditionally, either
because they acknowledge their guilt or wish to save the
authorities the trouble and the expense that will necessarily
be incurred in searching for and capturing them.
56

The only pieces of evidence in support of the plea of
voluntary surrender made by petitioner are statements made
by two (2) prosecution witnesses that they were allegedly
told by other people that he had already gone to the police
station. There is no showing that he was not actually
arrested; or that when he went to the police station, he
surrendered himself to a person in authority. Neither is there
any finding that he has evinced a desire to own to any
complicity in the killing.1wphi1
We have ruled in the past that the accused who had gone to
the police headquarters merely to report the shooting
incident did not evince any desire to admit responsibility for
the killing. Thus, he could not be deemed to have voluntarily
surrendered.
57
In the absence of sufficient and convincing
proof showing the existence of indispensable circumstances,
we cannot appreciate voluntary surrender to mitigate
petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision
and Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.