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[G.R. No. L-1441. April 7, 1949.

]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
MIGUEL N. MORENO (alias CAPTAIN MORENO), DefendantAppellant.
Almacen & Almacen for Appellant.
First Assistant Solicitor General Roberto A. Gianzon and
Solicitor Luis Feria for Appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE; TREASON; POSTPONEMENT
OF HEARING, TIME FOR FILING. There cannot be any question
that a petition or a motion for postponement of hearing can be filed
before or after arraignment. The proper time for filing said petition
or motion is not provided for in section 7 of Rule 114, which is only
intended to guaranty that "after a plea of not guilty, . . . the
defendant is entitled to at least two days to prepare for
trial."cralaw
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library
2. ID.; ID.; JUDGES; ABSENCE OF DISQUALIFICATION; DUTY TO
TAKE COGNIZANCE OF A CASE. To take or not to take
cognizance of a case, does not depend upon the discretion of a
judge not legally disqualified to sit in a given case. It is his duty not
to sit in its trial and decision if legally disqualified; but if the judge
is not disqualified, it is a matter of official duty for him to proceed
with the trial and decision of the case. He cannot shirk the
responsibility without the risk of being called upon to account for
his
dereliction.
3. ID.; ID.; TRIAL; JUDGES TO PROPOUND QUESTION TO ELICIT
THE TRUTH FROM WITNESSES. There is nothing on record to
show that anyone of the judges of the trial court attempted to help
the prosecution. The question propounded by the judge, subject of
appellants complain, appeared to have been intended to elicit the
truth from the witnesses. The inquisitiveness complained of by
appellants counsel did not have the purpose of unduly harming the
substantial rights of the accused. It was only to be expected from
judges who, with full consciousness of their responsibilities, could
nor easily be satisfied with incompleteness and obscurities in the

testimonies.
4. ID.; ID.; ID.; OCULAR INSPECTION DISCRETIONARY.
Whether such an ocular inspection should have been made or not,
rested upon the discretion of the trial court. In the instant case
there is no showing that the trial court committed a grave abuse of
discretion.
5.
ID.;
ID.;
FINDINGS
OF
FACT
OF
TRIAL
COURT,
CONCLUSIVENESS OF. This court is fully satisfied that the
findings of fact of the trial court are substantially supported by the
evidence on record. This conclusion disposes of the appellants
contentions as to the last three alleged errors of the lower court.
The appellant admitted that he is a Filipino citizen.
DECISION
PERFECTO, J.:
At the outbreak of the war in 1941 appellant was serving sentence
in the San Ramon Penal Farm where he was assigned as assistant
chief of the machinery and engineering division. He says that he
was also designated by USAFFE Major Pitcher to take charge of the
observation squadron of the Penal Colony, and, as such observer,
he was ordered, together with the superintendent of the institution,
Severo Yap, to burn the wharf in Recodo, get some machinery and
truck nearby and bring them to San Ramon. At the time there was
a jail break and so he, together with some guards, was ordered to
apprehend the escapees. According to him, he was later on
pardoned by President Quezon, and the order of pardon was
received by the superintendent of the colony, a copy of which was
handed
to
him
in
the
early
part
of
1942.
After the Japanese had landed in Zamboanga, defendant was made
a commander of the "Kaigun Juitai," a military organization
attached to the Japanese naval police of Zamboanga. As such he
was authorized to possess a .45 caliber revolver, a Japanese saber,
and a "caborata" and to wear a uniform of blue denim shirt and
pants and an olive green cap with an anchor at the front. He

allowed

his

beard

to

grow

down

to

his

chest.

Accompanied by his daughter Olimpia, Ramon B. Alvarez went in


the afternoon of November 16, 1943, for a friendly visit to Otto
Galle, a German-born naturalized Filipino citizen and owner of a
one thousand hectare coconut plantation known as Patalon. Ramon
was met by Heddy, Galles daughter and wife of Dr. Eduardo del
Rosario. She told him that if he had not come, she would have
called for him. She brought him to an adjoining building which
housed the canteen where Dr. Del Rosarios house was also
located. Del Rosario handed a note conceived as follows: "I would
like you to come here at Cadalogan at 6 a. m., sharp for a
conference. In coming to that place just come alone. (Sgd.)
Berenguer,
1st
Lt.
Infant."cralaw
virtua1aw
library
Because the letter was delivered by one Ernesto, a nephew of
appellants wife, Mrs. Del Rosario had misgivings about the
authenticity of the letter. Alvarez suspected it to be fake and as a
trick of appellant to meet Del Rosario, because he knew that
Lieutenant Berenguer was then in Dipolog and could not be in
Cadalogan, within the jurisdiction of Zamboanga. Besides,
Berenguer
was
only
a
second
infantry
lieutenant.
The fact that the owner of the Patalon plantation used to give the
guerrillas a monthly contribution of P150, some medicine, coffee
and other foodstuffs and the fact that some members of the
resistance movement used to visit Galles house strengthened the
worries and fears of Alvarez and the Del Rosario spouses. Alvarez
advised that the note must not be answered and that a sailboat be
prepared in order to leave the place when necessary. Otto Galle
requested Alvarez to pass the night in Patalon. Although he himself
entertained fears that he might be implicated if found in the Galle
residence, Alvarez consented to remain in the place for the night
with
his
daughter.
After supper and when Alvarez had already retired to the room
assigned to him, a voice from the yard outside was heard calling
for Dr. Del Rosario. The latter went to a window and asked who was
calling, and the answer was: "The one who arrived," which was
understood by the inmates of the house to be that the one who
answered
was
or
pretended
to
be
a
guerrilla.

Those in the house assembled in the sala. Heddy del Rosario came
telling that: "It is exactly 10:05." After a conference, Del Rosario
took his wrist watch and handed it to Alvarez telling him: "Give it
to them." Alvarez was about to follow the suggestion but in the
middle of the stairs he became afraid and told Galle that he could
not comply as it was dangerous for him to do so. Galle took the
wrist watch and went downstairs with a light in his right hand, but
returned because he was ordered by the men outside to put out
the light. When he went down again he was followed by Alvarez.
There
he
met
the Appellant.
Appellant Moreno asked Alvarez for Del Rosario and ordered Galle
to go with him outside. Galle refused and so Moreno struck him.
Then Galle said: "You can do anything you want." Whereupon,
shots
were
heard
and
Galle
fell
down.
Heddy del Rosario sounded the alarm, but Moreno shouted: "Stop
that sounding and put out the light." When the light was about to
be put out, another shot was fired which entered the room where
Olimpia Alvarez was, and so Alvarez ran and jumped to the other
side of the barbed wire fence, then went down to a brook and hid
in
a
bamboo
grove.
The next morning, at about 6 oclock, Moreno came again with his
men and started firing many shots at the house. Sometime later,
Alvarez was able to count more than two hundred empty shells in
the yard. During the firing that morning Alvarez and his daughter
were able to escape by the back yard to about two hundred meters
away where they took a vinta and went to Talisayan. Alvarez saw
Galles
house
burning.
Within the house ten persons were killed, Otto Galle, his wife Ines,
Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, two maids Alejandra and Gregoria, Cristino Geronimo and
Andres Fabian. According to Elena Casongcay, a maid who was able
to witness the proceeding from a hidden place near the fence, after
the assailants had looted the house of its many personal
belongings, Moreno ordered his men to burn it. Blas Francisco, a
worker in the service of Galle and who had survived from that
holocaust, substantially corroborated both Alvarez and Elena
Casongcay.

On April 22, 1944, appellant also took active part in the arrest in
Labuan of Eulogio and Dionisio Biel and of Enrique Fargas, made by
a group of Japanese and Filipino soldiers. The two Biels were
arrested because of the help they were giving to the guerrillas. The
three arrested persons were at about 4 oclock in the afternoon
taken in a truck to San Ramon Penal Colony and on April 28 they
were seen by Filoteo being escorted by Japanese soldiers on a
truck bound for the City Hall Building of Zamboanga. None of them
were ever heard of or seen alive since then. These facts are proven
by the testimonies of Patrocinio Vda. de Biel, Agueda Vda. de Biel,
Romula
Biel,
Fermin
Filoteo
and
Mamerto
de
Leon.
In the morning of February 11, 1944, another patrol of armed
Japanese and "Kaigun Juitai" Filipino soldiers, led by appellant as
one of the leaders, arrived at the house of Venancio Ventura in
Boongan, Isabela de Basilan, Zamboanga. Several persons in the
house were called by the members of the patrol for investigation.
After Eduardo Ventura, one of the members of the patrol, had
started to make investigation about the guerrillas and their
activities in the place, shots were fired from a nearby hill directed
towards the patrol, the members of which laid flat on the ground
and returned the shots. The firing lasted almost half an hour. While
the firing was going on, Prudencio and Raymundo Nonial ran away
to a nearby bush and were able to escape. After the shooting had
ceased, Moreno and his companions continued investigating
Agustin and Claro Nonial regarding the whereabouts of Ramon and
Miguel Nonial, lieutenant and surgeon respectively of the guerrillas
at Bangue. Because of their denials, they were slapped and struck
with fist blows. Agustin Ventura, Venancio Ventura, Claro Nonial,
Agustin Nonial, Agustin Laracochea and Victor Garcia were ordered
to march in single file. After they walked for about thirty meters,
Eduardo Ventura ordered them to turn to the left and on
appellants order, he machine-gunned them all. Agustin and Claro
Nonial were instantly killed, while the four others were wounded.
The
left
arm
of
Laracochea
was
later
amputated.

first two. Ramon Camagay and Hermenegildo A. Santos testified to


these facts. Since then these three guerrillas were never seen nor
heard
of
anymore.
The trial court found the appellant guilty of treason, complexed
with multiple murder of fifteen persons, and sentenced him to
suffer the penalty of death in the manner prescribed by law and to
pay a fine of P10,000, to pay indemnity of P2,000 to each of the
heirs of Otto Galle, Ines Galle, Eduardo del Rosario, Heddy del
Rosario, Nene del Rosario, Fred del Rosario, maid Alejandra, maid
Gregoria, Cristino Geronimo, Andres Fabian, Eulogio Biel, Dionisio
Biel, Enrique Fargas, Agustin Nonial and Claro Nonial, and to pay
the
costs.
Counsel for the appellant assign in their brief eight alleged errors of
the trial court. We shall now consider them.
I
"The trial court erred in denying the petition of appellant for the
postponement of the hearing to enable his counsel to prepare his
defense properly, a right which is granted him by our fundamental
laws."cralaw
virtua1aw
library
At the start of the trial, appellants counsel moved for the
postponement of the hearing in order to prepare properly for the
defense,
stating:jgc:chanrobles.com.ph
"Your honor, please. My services was just hired by the family of
the accused, so we ask for the postponement of the trial of the
case in order to prepare properly our defense." (1)
The petition was not granted. The accused was arraigned and the
trial
proceeded.

The above facts were testified to by Agustin Laracochea, Prudencio


Nonial,
Venancio
Ventura
and
Victor
Garcia.

Appellant now invokes the provision of section 7 of Rule 114, Rules


of
Court,
which
reads,
as
follows:jgc:chanrobles.com.ph

During the first week of August, 1944, Toribio Timonel, Candido


Cabrera and Daniel del Rio, all imprisoned guerrillas, were
investigated by appellant, who took part in the maltreatment of the

"SEC. 7. Time to prepare for trial. After a plea of not guilty,


except when the case is on appeal from the justice of the peace,
the defendant is entitled to at least two days to prepare for trial

unless the court for good cause shown shall allow further
time."cralaw
virtua1aw
library
The prosecution contends that appellant cannot invoke the above
provision, because the petition was made before the arraignment,
and the proper time for filing the petition is after arraignment and
a plea of not guilty, and not before. The prosecution contends
further that, from what appears in the transcript, counsel has
waived the right for postponement because, when asked whether
he had any objection to the prosecution introducing its evidence,
he answered: "Yes, Your Honor without prejudice to reserve our
right to ask for the postponement for the presentation of the
evidence
for
the
defense."
(2).
There cannot be any question that a petition or a motion for
postponement of hearing can be filed before or after arraignment.
The proper time for filing said petition or motion is not provided for
in section 7 of Rule 114, which is only intended to guaranty that
"after a plea of not guilty, . . .the defendant is entitled to at least
two days to prepare for trial."cralaw virtua1aw library
There is conflict of opinion as to whether defendants counsel made
expressed waiver of his petition for postponement. The majority
had voted affirmatively. Although the majority vote appears to be
supported by the wording of counsels statement in the lower court,
the writers dissenting vote was cast on the ground that said
statement should be interpreted jointly with the petition for
postponement and the statements made by the court, the fiscal
and the accuseds counsel, made before and after the statements
in question, and all said circumstances when considered make the
waiver at least doubtful.
II
"The trial court erred in denying the petition of appellant for the
voluntary inhibition of the trial judge who tried this case for the
simple reason that they had already formed a biased opinion and
therefore could not render an impartial judgment." (1).
Because of the fact that Judge Florentino Saguin one of the
members of the trial court had sentenced appellant for murder

based on the same facts as alleged in count number 4 of the


information for treason, which was later on eliminated, appellants
counsel moved for the voluntary inhibition of said judge to sit in
this treason case, and now complains that his motion was denied.
The complaint is groundless. Counsel was not able to invoke any
provision of law in support of his motion. As a matter of fact, there
is none. The petition was addressed to the discretion of Judge
Saguin, and Judge Saguin acted properly and wisely in sitting in
this
case.
It is not contended that Judge Saguin was disqualified under any
specific provision of law. Consequently, it was his duty to take
cognizance of a case. To take or not to take cognizance of a case,
does not depend upon the discretion of a judge not legally
disqualified to sit in a given case. It is his duty not to sit in its trial
and decision if legally disqualified; but if the judge is not
disqualified, it is a matter of official duty for him to proceed with
the trial and decision of the case. He cannot shirk the responsibility
without the risk of being called upon to account for his dereliction.
III
"The trial court erred in abusing too much his discretion and by
assuring the role of the prosecution and converting our courts of
justice
into
that
of
an
inquisitorial
tribunal."
(1).
The reasons pointed out in appellants brief do not justify his
complaint.
There is nothing on record to show that anyone of the judges of
the trial court attempted to help the prosecution. The questions
propounded by the judge, subject of appellants complain,
appeared to have been intended to elicit the truth from the
witnesses. The inquisitiveness complained of by appellants counsel
did not have the purpose of unduly harming the substantial rights
of the accused. It was only to be expected from judges who, with
full consciousness of their responsibilities, could not easily be
satisfied with incompleteness and obscurities in the testimonies.
With regards to the resolution sustaining an objection which does

not appear in the transcript to have been made, the prosecution


believes that the transcript need not contain a complete account of
what
actually
transpired.
Accepting that the lower court erred in this respect, appellant has
not shown that the error had adversely affected him in a
substantial manner. In the absence of such a showing, further
discussion on the question is unnecessary.
IV
"The trial court erred in admitting Exhibits A, B, and C." (1).
The admissibility of Exhibits A, B and C has been established by the
testimony of Patrocinio Vda. de Biel, Mamerto de Leon and Ramon
Camagay.
V
"The trial court erred in denying petition of appellant for an ocular
inspection
of
the
place
of
Otto
Galle."
(1).
There is not enough showing that the trial court erred in refusing
defendants request for an ocular inspection of the Galle
plantation.
Whether such an ocular inspection should have been made or not,
rested upon the discretion of the trial court. In the instant case
there is no showing that the trial court committed a grave abuse of
discretion.
VI
"The trial court erred in giving credit to the testimony of the
witnesses for the prosecution and disregarded the testimony of the
witnesses for the defense."cralaw virtua1aw library
VII

"The trial court erred in finding appellant herein guilty of the crime
charged."cralaw virtua1aw library
VIII
"The trial court erred in holding appellant guilty and responsible for
the crime of high treason complexed with multiple murders, and in
not
acquitting
him."
(1).
This court is fully satisfied that the findings of fact of the trial court
are substantially supported by the evidence on record. This
conclusion disposes of the appellants contentions as to the last
three alleged errors of the lower court. The appellant admitted that
he
is
a
Filipino
citizen.
Upon the facts proved we find that appellant is guilty of the crime
of treason as punished under article 114 of the Revised Penal
Code.
A majority voted for the affirmance of the appealed judgment,
while there are minority members who voted that appellant be
sentenced to reclusion perpetua. The writer, as a result of his
position regarding the non-postponement of the trial in the lower
court, voted to remand this case for a re-trial in the lower court.
The
final
result
is
to
modify
the
judgment.
Accordingly, appellant is sentenced to reclusion perpetua and to
pay a fine of P10,000 and the costs. Under the ruling in People v.
Amansec (80 Phil., 424, 435) he is also ordered to pay an
indemnity of P90,000 at the rate of P6,000 to the respective heirs
of each one of the following fifteen persons: Otto Galle, Ines Galle,
Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, maids Alejandra and Gregoria, Cristino Geronimo, Andres
Fabian, Eulogio Biel, Dionisio Biel, Enrique Fargas, Agustin Nonial
and Claro Nonial. With these modifications the appealed judgment
is
affirmed.
Moran, C.J., Paras, Bengzon, Briones and Montemayor, JJ., concur.
G.R. No. L-55177 February 27, 1987

PEOPLE
OF
THE
vs.
RUBEN MANALO, defendant-appellant.

PHILIPPINES, plaintiff-appellee,

recently been aggravated by the fatal stabbing of a member of the SigueSigue Sputnik gang by members of the BCJ gang.
On 6 February 1978, Ruben Manalo was charged with murder in an
information which read as follows:

FELICIANO, J.:
The judgment of the former Circuit Criminal Court of Rizal in Criminal Case
No. CCC-VII-2505 finding Ruben Manalo guilty of murder and imposing the
death penalty, is before us on automatic review.
The record discloses that in the morning of 23 May 1977, appellant Ruben
Manalo, a prisoner serving sentence in the National Bilibid Prison, was at the
visiting area of the prison waiting for transfer to the San Ramon Penal
Colony. Alfredo de la Cruz, Jolly Hilario and Reynaldo Cariso, all convicted
prisoners serving their respective sentences, were similarly waiting in the
same visiting area for transfer to the same penal colony. While at the visiting
area, appellant engaged another convict in a betting game called "honkiang",
after which appellant and dela Cruz indulged in speculation concerning their
prospective life in the penal colony. During this conversation, appellant
attacked dela Cruz with a knife, inflicting two fatal stabwounds on the latter's
back. Immediately after the stabbing, appellant voluntarily surrendered to the
prison authorities and handed over the fan knife (balisong) he used in killing
dela Cruz.
Immediately after the killing and the appellant's surrender, the appellant was
investigated by the prison authorities. During this investigation, Ruben
Manalo readily admitted verbally having stabbed the victim and nonchalantly
advised that the fan knife he used had been bought by him for P25.00 a
month ago and had been concealed inside his right rubber shoe and so was
not discovered by the prison guard who had searched him before entering
the Visiting Shed.
The investigation also revealed that the victim was a member of the BCJ
(Batang City Jail gang from prison Dormitory 3D while Ruben Manalo is a
member of the Sigue Sigue Sputnik gang from prison Dormitory 2B. These
two gangs have had a serious, ongoing feud for a long time, winch had

That on or about the 23rd day of May 1977 in the


municipality of Muntinlupa, and within the jurisdiction of this
Honorable Court, the above-named accused, who is a
convict confined and serving his sentence in the new Bilibid
Prison by virtue of final judgment rendered against him by
courts of competent jurisdiction, with intent to kill, evident
premeditation and treachery did then and there willfully,
unlawfully and feloniously attack, assault and stab with a
bladed weapon one Alfredo dela Cruz, also a convict,
thereby inflicting upon him stab wounds on the vital parts of
his body which directly caused his death.
Contrary to law, with the aggravating circumstance of quasirecidivism, the accused having committed the offense while
serving his sentence in the New Bilibid Prison.
Upon arraignment, and with the assistance of counsel, appellant pleaded
guilty. The trial court nonetheless ordered the mandatory presentation of
evidence. After trial, in a decision dated 7 December 1978, the trial court
concluded that the killing of Alfredo dela Cruz by Ruben Manalo had been
attended by treachery and evident premeditation and aggravated by quasirecidivism. The dispositive portion of the judgment read:
DAHIL SA GAYON, dahil sa kusang loob na pag-amin nang
kasalanan nang nasasakdal sa paglabag sa Artikulo 248
nang Binagong Kodigo Penal na naayon sa sakdal,
napatunayan nang Hukumang ito na siya ay nagkasala at
siya ay hinahatulan nang parusang KAMATAYAN.
Pagbabayaran din niya ang mga tagapagmana nang nasawi
nang halagang P12,000.00 at P10,000.00 bayad pinsalang
moral, P10,000.00 bayad pinsalang di dapat pamarisan at
ang gastos ng usaping ito.

IPINAGUUTOS.

A It is possible.

In his brief, appellant does not question the finding of the trial court that he
had killed Alfredo dela Cruz. Instead, the appellant assigns two distinct
errors:

COURT He was attacked without giving a chance to


defend himself.
A It is possible.

(1) the proceedings in the trial court were null and void since certain
constitutional rights of the appellant had been disregarded therein; and

xxx xxx xxx 1

(2) the trial court erred in finding that the killing of dela Cruz had been
attended by the qualifying circumstances of evident premeditation and
treachery.

At the subsequent hearing, during the cross-examination of Jolly Hilario by


defense counsel, the trial court intervened once more in the following
manner:

In respect of the first assigned error, it is the contention of the appellant that
he was deprived of his constitutional right to due process, to be presumed
innocent until the contrary is proved, to an impartial trial and to counsel, by
reason of the lower court's partiality, bias and lack of objectivity during the
trial. The appellant urges that since the trial-court was not an impartial
tribunal, all the proceedings before it should be set aside as null and void.

COURT The fact remains that Alfredo de la Cruz


was not armed?

Appellant maintains that lack of impartiality and of objectivity on the part of


the trial judge was clearly shown when he intervened in the crossexamination of Dr. Virgilio Hernale (the physician who had carried out the
autopsy of the victim dela Cruz) and of Jolly Hilario both being witnesses for
the prosecution. Upon termination of the cross-examination of Dr. Hernale by
defense counsel, the trial judge raised the following questions which Dr.
Hernale answered in the following manner:
COURT Did you find any defense (sic) wounds?
A No sir.
COURT The wound is located at the back?
A Yes sir.
COURT You mean to say he was attacked
treacherously?

A Yes, your Honor.


COURT And he was stabbed suddenly by Ruben
Manalo?
A Yes, your Honor.
COURT Alfredo dela Cruz was not able to parry any
stab blow by Ruben Manalo?
A No, your Honor.
xxx xxx xxx
COURT To what gang do you belong?
A To the Batang City Jail your Honor.
COURT Where were you operating before when you
were not yet sentenced by the court?
A In Manila.

COURT In what part of Manila?

COURT And each gang usually attacks the weak


ones especially so when they have no arms?

A In Quiapo, your Honor.


A Yes, your honor.
COURT And as matter of fact, in your area of
operation the enemy of your gang are the Sputniks
of which Ruben Manalo is a member?

COURT Proceed.
xxx xxx xxx 2

A They were enemies, your Honor.


COURT So much so that if you have enemies
outside the jail, it follows that you will have enemies
inside the prison walls?
A Yes, your Honor.
COURT So much so that the members of the
Sputniks surely the members belonging to the
Batang City Jail gang?

The appellant claims that the above interventions of the trial court show that,
at the very outset, the judge had already concluded that appellant was guilty
of murder and had resolved to convict him; that the trial court had functioned
"both as judge and prosecutor" asking questions of witnesses "calculated to
establish treachery, premeditation and motive"; that the questions raised by
the trial court were exceptionable ones, being "leading, misleading, caged for
opinions or were objectionable on the ground of the witness' incompetence";
and that therefore, appellant "never had a fair chance." 3
We are not persuaded by the appellant's contention. As long ago as 1915,
this Court held that:

A Yes, your Honor.


COURT And in the same manner, vice versa
members of Batang City Jail gang will kill any
member of the Sputniks?
A Yes.
COURT And the mode of killing is by treachery and
will not give any chance to the victim to defend
himself.?
A Yes, your Honor.
COURT That is also true to your gang?
A Yes, your honor.

A severe examination by a trial judge of some of the


witnesses for the defense in an effort to develop the truth
and to get at the real facts affords no justification for a
charge in counsel's brief on appeal that he has assisted the
prosecution with an evident desire to secure a conviction or
that he had intimidated the witness for the defense. We have
had occasion to hold (U.S. vs. Hudieres 27 Phil. Rep., 45)
that it is not only the right but often times the duty of a trial
judge to examine witnesses when it appears to be necessary
for the elucidation of the record. Under the system of legal
procedure in vogue in this jurisdiction, where the trial court is
judge of both the law and the facts, it is oftentimes expedient
or necessary in the due and faithful administration of justice
for the presiding judge in the exercise of a sound discretion
to reexamine a witness in order that his judgment when
rendered may rest upon a full and clear understanding of the
facts. 4

We must accord to a trial judge reasonable leeway in putting such questions


to witnesses as may be essential to elicit relevant facts and to make the
record speak the truth. In such an effort, a judge may examine or crossexamine a witness. He may seek to draw out relevant and material testimony
though that testimony may tend to support or rebut the position taken by one
or the other party. In the first instance, the Court has pointed out, "the extent
to which such examination may be conducted rests in the discretion of the
judge, the exercise of which will not be controlled unless his discretion has
clearly been abused to the prejudice of either party." 5 In the present case,
we do not believe that the trial judge transgressed the permissible limits of
judicial inquiry. It appears to us that the judge merely sought to clarify to
himself whether or not treachery and evident premeditation had indeed
attended the killing of Alfredo dela Cruz, as alleged by the prosecution. All
that the questions propounded by the judge indicates to us is that he was not
particularly skillful in cross-examination and that he found it difficult to
operationalize words which themselves imported conclusions. Finally, we
would note that the questions posed by the trial judge, quoted above, did not
ultimately impose any prejudice upon the appellant, for reasons that will
become clear shortly. The questions raised by the trial judge sought to draw
forth answers which did not relate to whether or not the appellant had in fact
killed dela Cruz. The appellant had not only entered an intelligent and valid
plea of guilty; that he had killed his fellow convict dela Cruz was established
by independent and overwhelming evidence.
The appellant also claims that he was denied his constitutional right to
counsel. The appellant admits that he was assisted by counsel de oficio from
the time of arraignment and throughout the trial of the case. Appellant,
however, deplores the fact that several different counsel de oficio assisted
him during the different hearings held in his case. Atty. Galvan appeared for
Manalo at the arraignment and at the second and sixth hearings; Atty.
Sardillo assisted him during the first and the third hearings; at the fourth and
fifth hearings, Manalo was represented by Atty. Agoot. At the fifth hearing, the
appellant claims, the prosecution was already "mid-stream" in its direct
examination of the prosecution witness of whom 27 questions and already
been asked, when the prosecution suddenly commented that "I think there is
no lawyer for the accused [present]." The trial court forthwith appointed Atty.
Agoot there physically present as counsel de oficio (apparently forgetting that
he had already been appointed counsel de oficio and had acted as such, at

the previous [fourth] hearing) and thereupon proceeded with the trial of the
case.
Appellant raises the entertaining, if rhetorical question of how ably his
counsel de oficio could defend him since they were playing musical chairs
hearing after hearing." 6 Thus, the appellant asserts that his right to counsel
was "but a sham." that by appointing multiple counsel de oficio the trial court
did not effectively provide him with the assistance and protection required by
the Constitution. 7
The appellant's argument is novel and interesting but, once more, we are not
persuaded that there has here been a deprivation of a constitutional right
which requires annulment of all the proceedings before the trial court. We do
not believe that the fact that a particular counsel de oficio did not or could not
consistently appear in all the hearings of the case, is effectively a denial of
the right to counsel, especially so where, as in the instant case, there is no
showing that the several appointed counsel de oficio in any way neglected to
perform their duties to the appellant and to the trial court and that the
defense had suffered in any substantial sense therefrom. Fairness to the
several counsel de oficio requires us to note the record which reveals that
each of them had conscientiously performed their duties in assisting the
appellant and protecting his interest by, for instance, making the necessary
objections in a timely manner during the examination of the prosecution
witnesses to test their credibility and freedom from bias or evil
motive. 8 Contrary to the suggestion of the appellant, Atty. Agoot was not
entitled to a recess of two days to prepare to defend the appellant after Atty.
Agoot was re-appointed counsel de oficio at the fifth hearing. That lawyer
had previously been designated counsel de oficio during the preceding
(fourth) hearing. 9 Both the appellant and the court had therefore the right to
expect that counsel de oficio was familiar with the facts of the appellant's
case and that he had prepared himself for the fifth hearing since his prior
appointment as counsel de oficio had not been revoked by the trial court. In
point of fact, his designation once more as counsel de oficio during the fifth
hearing was totally unnecessary. In any case, Rule 116, Section 5 of the
Rules of Court gives the trial judge discretion to shorten or extend the time
given to an attorney de oficio to prepare his defense.

We turn to the appellant's second assignment of error: that relating to the


finding of the lower court that the killing of convict dela Cruz was attended by
the qualifying circumstances of evident premeditation and treachery. We note
at once that the Solicitor General has concurred with the view taken by the
appellant on this point.
The lower court had found that dela Cruz was sleeping when attacked by
Ruben Manalo (citing, in this connection, the Necropsy Report) 10 and thus,
concluded that treachery was present. The Solicitor General, however,
concedes that there was absolutely no evidence in the record to show that
dela Cruz was stabbed while asleep. 11 The Necropsy Report only described
the injuries and the cause of death of the victim. No statement is found there
that the victim was asleep at the time of the stabbing. Neither the physician
who carried out the autopsy and prepared the Necropsy Report nor the two
eyewitnesses to the stabbing had testified that the fatal wounds had been
administered while the victim was asleep. On the contrary, both
eyewitnesses to the killing explicitly stated that the appellant had stabbed
dela Cruz while the two were conversing with each other. 12
Treachery cannot be presumed. It must be proven as conclusively as the act
of killing itself. The fact that the fatal wounds were found at the back of the
deceased does not, by itself, compel a finding of treachery. Such a finding
must be based on some positive proof and not be merely an inference drawn
more or less logically from hypothetical facts. This Court has ruled that the
suddenness of an attack is not, of itself, enough to constitute treachery when
the method of killing does not positively show that the assailant thereby
knowingly intended to ensure the accomplishment of his purpose without risk
to himself from any defense which the victim might put up 13 In other words, to
sustain a finding of treachery, the means, method or form of attack must be
shown to have been deliberately adopted by the appellant. 14 There was no
such showing here. On the contrary, the evidence indicated that the killing of
dela Cruz was not pre-planned by the appellant and that the decision to kill
was an impulse of the moment. Appellant was in the visiting area with dela
Cruz not because the appellant had deliberately planned to be there at the
same time as dela Cruz. Rather, appellant was there because he along with
others, had been chosen by the prison authorities for transfer to the penal
colony. Thus, appellant found himself with dela Cruz that morning by accident
and not by design. Further, dela Cruz was stabbed while lying on a table,

10

engaged in a conversation with the appellant. Appellant could not have


forseen that dela Cruz would lie down on a table and present such an
attractive victim; thus, the resolve to stab him while dela Cruz was in a prone
position, must have been taken impulsively. Finally, if the appellant had
planned the killing, the probability was that he would not have planned to
carry it out in broad daylight while dela Cruz's gangmates and dormitory
mates (Hilario and Cariso) were close by.
The Solicitor General has also agreed with the appellant that the trial court's
finding of evident premeditation was erroneous because of lack of support in
the record. The Solicitor General said:
[To show evident premeditation] it is necessary to establish
(a) the time when the offender determined to commit the
crime, (b) a notorious act manifestly indicating that he has
clung to his determination, and (c) a sufficient lapse of time
between the determination and the execution, to allow him to
reflect upon the consequences of his act. (Padilla, Criminal
Law, 1979 ed. p. 449).
None of these requisites was proven in the case at bar. The
evidence presented at the trial was limited to events that
transpired immediately prior, during and after the attack. No
one testified on any incident that occurred an hour or more
before the attack. Hence, there is no proof on (a) when
appellant resolved to kill the victim, (b) what external acts
demonstrated that he stuck to his resolution and (c) whether
he had sufficient time to reflect upon the consequences of
his act.
In fact, there is no evidence to show that appellant and de la
Cruz knew each other prior to the killing. They belonged to
different gangs, were assigned to different brigades and lived
in different dormitories. Prosecution witnesses Hilario and
Cariso who were gangmates, dorm-mates and close friends
of de la Cruz, did not know appellant's name. Thus, it is
highly probable that appellant was not even acquainted with
de la Cruz and so there was no reason for appellant to

resolve before hand to kill de la Cruz. The qualifying


circumstance of premeditation may be properly taken into
account only when the intention to kill has been planned in
the mind of the offender and carefully meditated. It is not
enough that it arose at the moment of the aggression, as in
the present case.
In the absence of clear proof of any circumstance that would
qualify as murder the killing of the deceased, we submit that
appellant committed no more than homicide. 15
We agree with the Solicitor General.
WHEREFORE, the decision of the lower court is modified and Ruben Manalo
is found guilty beyond reasonable doubt of the crime of homicide for which, in
view of the presence of the special aggravating circumstance of quasirecidivism under Article 160 of the Revised Penal Code, the correct
imposable penalty is reclusion temporal in its maximum period. Applying the
Indeterminate Sentence Law, Ruben Manalo is hereby sentenced to an
indeterminate penalty of ten (10) years and one (1) day of prision mayor as a
minimum and seventeen (17) years, four (4) months and one (1) day
of reclusion temporal as a maximum. The civil indemnity due to the heirs of
Alfredo dela Cruz is increased to Thirty Thousand Pesos (P30,000.00). The
balance of the judgment of the lower court is AFFIRMED.
SO ORDERED.

FRANCISCO
BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO
JOSE, Provincial Fiscal of Isabela, respondents.
Gregorio
P.
Formoso
and
Vicente
The respondents in their own behalf.

Formoso

for

petitioner.

ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains that
the respondent judge ordered him to appear before the provincial fiscal to
take dictation in his own handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of comparing
the petitioner's handwriting and determining whether or not it is he who wrote
certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in these
proceedings; but the respondents contend that the petitioner is not entitled to
the remedy applied for, inasmuch as the order prayed for by the provincial
fiscal and later granted by the court below, and again which the instant action
was brought, is based on the provisions of section 1687 of the Administrative
Code and on the doctrine laid down in the cases of People vs. Badilla (48
Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong
Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the
case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in
question.
Of course, the fiscal under section 1687 of the Administrative Code, and the
proper judge, upon motion of the fiscal, may compel witnesses to be present
at the investigation of any crime or misdemeanor. But this power must be
exercised without prejudice to the constitutional rights of persons cited to
appear.

G.R. No. 32025

11

September 23, 1929

And the petitioner, in refusing to perform what the fiscal demanded, seeks
refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.

Therefore, the question raised is to be decided by examining whether the


constitutional provision invoked by the petitioner prohibits compulsion to
execute what is enjoined upon him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in
Spanish) reads: "Ni se le obligara a declarar en contra suya en ningun
proceso criminal" and has been incorporated in our Criminal Procedure
(General Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the English
text of the Jones Law, which is the original one, reads as follows: "Nor shall
be compelled in any criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover, as
we are concerned with a principle contained both in the Federal constitution
and in the constitutions of several states of the United States, but expressed
differently, we should take it that these various phrasings have a common
conception.
In the interpretation of the principle, nothing turns upon the variations
of wording in the constitutional clauses; this much is conceded (ante,
par. 2252). It is therefore immaterial that the witness is protected by
one constitution from 'testifying', or by another from 'furnishing
evidence', or by another from 'giving evidence,' or by still another
from 'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What
is that conception? (4 Wigmore on Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends
to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional provision
that no man accused of crime shall be compelled to be a witness
against himself is so sacred, and the pressure toward their relaxation
so great when the suspicion of guilt is strong and the evidence
obscure, that is the duty of courts liberally to construe the prohibition
in favor of personal rights, and to refuse to permit any steps tending

12

toward their invasion. Hence, there is the well-established doctrine


that the constitutional inhibition is directed not merely to giving of
oral testimony, but embraces as well the furnishing of evidence by
other means than by word of mouth, the divulging, in short, of any
fact which the accused has a right to hold secret. (28 R. C. L.,
paragraph 20, page 434 and notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the writing from
the fiscal's dictation by the petitioner for the purpose of comparing the latter's
handwriting and determining whether he wrote certain documents supposed
to be falsified, constitutes evidence against himself within the scope and
meaning of the constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf,
denies that a certain writing or signature is in his own hand, he may on crossexamination be compelled to write in open court in order that the jury maybe
able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013)
inasmuch as the defendant, in offering himself as witness in his own behalf,
waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where
the judge asked the defendant to write his name during the hearing, and the
latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We
are not concerned here with the defendant, for it does not appear that any
information was filed against the petitioner for the supposed falsification, and
still less as it a question of the defendant on trial testifying and under crossexamination. This is only an investigation prior to the information and with a
view to filing it. And let it further be noted that in the case of Sprouse vs.
Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of
writing of the defendant was obtainedbefore the criminal action was instituted
against him. We refer to the case of People vs. Molineux (61 Northeastern
Reporter, 286).

Neither may it be applied to the instant case, because there, as in the


aforesaid case of Sprouse vs. Com., the defendant voluntarily offered to
write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to
the defendant's right to decline to write, and to the fact that
he voluntarily wrote. The following appears in the body of said decision
referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He
preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded from
the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41
Mich., 709; 3 N. W., 199), that the defendant could not be compelled to write
his name, the doctrine being stated as follows:
The defendant being sworn in his own behalf denied the
endorsement.
He was then cross-examined the question in regard to his having
signed papers not in the case, and was asked in particular whether
he would not produce signatures made prior to the note in suit, and
whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings
that complaint is made. The object of the questions was to bring into
the case extrinsic signatures, for the purpose of comparison by the
jury, and we think that the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4,
page 878), says:
Measuring or photographing the party is not within the privilege. Nor
it is the removal or replacement of his garments or shoes. Nor is the
requirement that the party move his body to enable the foregoing
things to be done. Requiring him to make specimens of
handwriting is no more than requiring him to move his body . . ." but

13

he cites no case in support of his last assertion on specimens of


handwriting. We note that in the same paragraph 2265, where said
authors treats of "Bodily Exhibition." and under preposition "1. A
great variety of concrete illustrations have been ruled upon," he cites
many cases, among them that of People vs. Molineux (61 N. E., 286)
which, as we have seen, has no application to the case at bar
because there the defendant voluntary gave specimens of his
handwriting, while here the petitioner refuses to do so and has even
instituted these prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is something more than moving
the body, or the hands, or the fingers; writing is not a purely mechanical act,
because it requires the application of intelligence and attention; and in the
case at bar writing means that the petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as the petition of the respondent
fiscal clearly states. Except that it is more serious, we believe the present
case is similar to that of producing documents or chattels in one's
possession. And as to such production of documents or chattels. which to our
mind is not so serious as the case now before us, the same eminent
Professor Wigmore, in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. 1.
It follows that the production of documents or chattels by a person
(whether ordinary witness or party-witness) in response to a
subpoena, or to a motion to order production, or to other form
of process treating him as a witness ( i.e. as a person appearing
before a tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the privilege; and
this is universally conceded. (And he cites the case of People vs.
Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a
similarity between one who is compelled to produce a document, and one
who is compelled to furnish a specimen of his handwriting, for in both cases,
the witness is required to furnish evidence against himself.

And we say that the present case is more serious than that of compelling the
production of documents or chattels, because here the witness is compelled
to write and create, by means of the act of writing, evidence which does not
exist, and which may identify him as the falsifier. And for this reason the
same eminent author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and not
desired to be first written and created by testimonial act or utterance
of the person in response to the process, still no line can be drawn
short of any process which treats him as a witness; because in virtue
it would be at any time liable to make oath to the identity or
authenticity or origin of the articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a
specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing
it is impossible to obtain specimen or specimens without resorting to the
means complained herein, that is no reason for trampling upon a personal
right guaranteed by the constitution. It might be true that in some cases
criminals may succeed in evading the hand of justice, but such cases are
accidental and do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of
the respondents, it should be remembered that in the case of People vs.
Badilla (48 Phil., 718), it does not appear that the defendants and other
witnesses were questioned by the fiscal against their will, and if they did not
refuse to answer, they must be understood to have waived their constitutional
privilege, as they could certainly do.

The same holds good in the case of United States vs. Tan Teng (23 Phil.,
145), were the defendant did not oppose the extraction from his body of the
substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
the court preferred to rest its decision on the reason of the case rather than
on blind adherence to tradition. The said reason of the case there consisted
in that it was the case of the examination of the body by physicians, which
could be and doubtless was interpreted by this court, as being no compulsion
of the petitioner therein to furnish evidence by means of testimonial act. In
reality she was not compelled to execute any positive act, much less a
testimonial act; she was only enjoined from something preventing the
examination; all of which is very different from what is required of the
petitioner of the present case, where it is sought to compel him to perform
a positive, testimonial act, to write and give a specimen of his handwriting for
the purpose of comparison. Besides, in the case of Villamor vs. Summers, it
was sought to exhibit something already in existence, while in the case at
bar, the question deals with something not yet in existence, and it is precisely
sought to compel the petitioner to make, prepare, or produce by this means,
evidence not yet in existence; in short, to create this evidence which may
seriously incriminate him.
Similar considerations suggest themselves to us with regard to the case of
United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
not compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the
respondents and those under their orders desist and abstain absolutely and
forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.

The privilege not to give self-incriminating evidence, while absolute


when claimed, maybe waived by any one entitled to invoke it. (28 R.
C. L., paragraph 29, page 442, and cases noted.)

14

Prec. Rec. No. 714-A

July 26, 1937

MARIA
vs.
LEODEGARIO D. CASTILLO, respondent.
G.
Viola
Fernando
Office
of
the
Solicitor-General
The respondent in his own behalf.

hilado

BERMUDEZ, complainant,

for
for

the

complainant.
Government.

DIAZ, J.:
In the course of the investigation which was being conducted by the office of
the Solicitor-General against the respondent, in connection with this

15

administrative case, said respondent filed, in addition to other evidence in


support of this defense, the six letters which, for purposes of identification,
were marked as Exhibits 32, 34, 35, 36 and 37. He then contended, as he
now continues to contend, that said six letters are the complainant's, but the
latter denied it while she was testifying as a witness in rebuttal. she admitted,
however, that the letters marked as Exhibits 38, 39 and 40 were in her own
handwriting.
As the respondent believed that the three letters admitted by the complainant
to be hers were insufficient for purposes of comparison with those
questioned in this case and as he was determined to show that said Exhibits
38, 39 and 40 were the complainant's, he required her to copy them in her
own handwriting in the presence of the investigator. The complainant, upon
advice of her attorney, refused to submit to the trial to which it was desired to
subject her, invoking her right not to incriminate herself and alleging that
Exhibits 38, 39 and 40 and the other letters already in the respondent's
possession, were more than sufficient for what he proposed to do. The
investigator, upholding the complainant, did not compel her to submit to the
trial required, thereby denying the respondent's petition. As respondent did
not agree to this decision of the investigator, he instituted these proceedings
praying that the investigator and the Solicitor-General in whose
representation he acted, be ordered to require and compel the complainant
to furnish new specimens of her handwriting by copying said Exhibits 32 to
37 for that purpose.
The question raised before this court is not new. In the case of Beltran vs.
Samson and Jose ([1929], 53 Phil., 570), a similar question was raised
before this court. The respondents therein desired to compel the petitioner to
write by hand what was then dictated to him. The petitioner, invoking the
constitutional provision contained in section 3, paragraph 3, of the Jones Law
which reads: ". . . nor shall be compelled in any criminal case to witness
against himself", refused to write and instituted prohibition proceedings
against the therein respondents. This court granted the petition and ordered
the respondents to desist and abstain absolutely from compelling the
petitioner to take down dictation by hand for the purpose of comparing his
handwriting. The reasons then adduced therein can and must be adduced in
this case to decide the same question; and all the more so because Article
III, section 1, No. 18, of the Constitution of the Philippines is worded in such

16

a way that the protection referred to therein extends to all cases, be they
criminal, civil or administrative. The constitution provides: "No person shall be
compelled to be a witness against himself." It should be noted that before it
was attempted to require the complainant to copy the six documents abovestated, she had sworn to tell the truth before the investigator authorized to
receive statements under oath, and under said oath she asserted that the
documents in question had not been written by her. Were she compelled to
write and were it proven by means of what she might write later that said
documents had really been written by her, it would be impossible for her to
evade prosecution for perjury, inasmuch as it would be warranted by article
183 of the Revised Penal Code, which reads:
The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being
included in the provisions of the next preceding articles, shall testify
under oath, or make an affidavit, upon any material matter before a
competent person authorized to administer an oath in cases in which
the law so requires.
Any person who, in case of a solemn affirmation made a lieu of an
oath shall commit any of the falsehoods mentioned in this and the
preceding articles of this section, shall suffer the respective penalties
provided therein.
The respondent invokes in his support the doctrine laid sown in Ex
Parte Crow (14 Pac. [2d series], 918), to the effect that ". . . a witness may
not arbitrarily refuse to answer a question on the ground that his answer
might incriminate him when the court can determine as a matter of law that
'no direct answer which the witness may make can tend to criminate him.'" It
must be taken into account that the question asked the petitioner in said
case, as stated by the prosecuting attorney, was only a preliminary question,
as it was simply attempted to learn from her who was with her on a certain
occasion, and on what date, to the best of her recollection, had she visited
Dr. Groose. She refused to answer said questions alleging that her answer
might incriminate her. The court upheld her saying:

We are therefore of the opinion that the trial court erred when it
determined as a matter of law that petitioners answer to the
questions propounded could have no tendency to incriminate her.
They clearly might have such tendency, and it was petitioners right
and privilege to decline to answer any of the above-mentioned
questions upon the ground stated. We fully realize the difficulty
encountered in the prosecution of cases under section 274 of the
Penal Code when those present and capable of establishing the
facts are unwilling to testify because of fear of subjecting themselves
to prosecution. But the constitutional and statutory guaranties
accorded to petitioner cannot be swept aside merely because they
may result in making difficult, or even impossible, the conviction of
the accused.
The respondent likewise invokes in his support doctrine laid down in
re Mackenzie (100 Vt. Rep., 325). This court is of the opinion that what had
been said in the above-cited case is not applicable to the case under
consideration. The petitioner Mackenzie, upon being required after he had
pleaded guilty of intoxication to disclose the person or persons who had
furnished him the liquor, said that they were stranger to him, whom he met
late in the evening in Barre. The court, considering his alleged disclosure
unsatisfactory, ordered him committed to jail until he should tell the truth or
until further orders. He instituted habeas corpus proceedings in his favor
alleging in his pleading that as he had already made a truthful disclosure, the
result of his commitment would be to compel him to deny his former
statements and make others which would make him guilty of perjury. The
court, deciding the question, said:
The privilege against self-crimination is a personal one. . . . But the
privilege is an option of refusal, not a prohibition of inquiry. Hence,
when an ordinary witness is on the stand, and self-criminating act
relevant to the issue is desired to be shown by him, the question may
be asked, and then it is for the witness to say whether he will answer
it or claim its privilege, for it cannot be known beforehand what he
will do.
It further state that "the proper place in which to claim the privilege is in the
trial court, when the question is propounded, not here." This is exactly the

17

case of the herein complainant. She opportunely invoked the privilege when
it was desired to subject her to trial by copying the six letters in question,
which Mackenzie failed to do.
It is true that in said case of Mackenzie, it was likewise stated that "No
reason appears why the examination on disclosure should not be subject to
the ordinary rule of cross-examination. The person making the disclosure is
in the petition of a witness called by the State, and is subject to the rule
permitting the impeachment of such a witness. It is no invasion of the
constitutional guaranty against self-crimination to compel the witness to
answer questions relating to the truthfulness of his previous testimony." This
court, however, is of the opinion that the foregoing is not applicable to the
case of the herein complainant, firstly, because she has made no disclosure;
she confined herself to denying the letters in question were hers when the
respondent, appressing in court with them, said rather than insinuated, that
they were hers, presenting in support of his statement, other letters which, by
reason of the handwriting, were to all appearances similar thereto; and
secondly, because her testimony, denying that she was the author of the
letters in question, may be attacked by means of other evidence in the
possession of the respondent, which is not precisely that coming from the
complaint herself.
The reason for the privilege appears evident. The purpose thereof is
positively to avoid and prohibit thereby the repetition and recurrence of the
certainly inhuman procedure of compelling a person, in a criminal or any
other case, to furnish the missing evidence necessary for his conviction. If
such is its purpose, then the evidence must be sought elsewhere; and if it is
desired to discover evidence in the person himself, then he must be
promised and assured at least absolute immunity by one authorized to do so
legally, or he should be asked, one for all, to furnish such evidence
voluntarily without any condition. This court is the opinion that in order that
the constitutional provision under consideration may prove to be a real
protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.
In view of the foregoing consideration and holding, as it is hereby held, that
the complainant is perfectly entitled to the privilege invoked by her, the
respondent's petition is denied. So ordered.

THE
PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance,
Branch II, Sixteenth Judicial District, Zamboanga City and PILAR
ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for
a writ of preliminary injunction, spawned by the August 4, 1978 order of
respondent judge in Criminal Case No. 750 for parricide against therein
accused Pilar Angeles de Pimentel, hereinafter referred to as private
respondent, is the admissibility in evidence of the testimony of a prosecution
witness in the said criminal case who dies before completion of his crossexamination. That issue is crucial to the fate of private respondent,
considering that the deceased prosecution witness "... is the most vital and
the only eyewitness available to the prosecution against respondent Pilar
Angeles de Pimentel for the commission of the gruesome crime of
parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was
then on official detail with the office of the City Fiscal, Zamboanga City, filed
with the Court of First Instance, Sixteenth Judicial District, Zamboanga City,
an amended information for parricide in Criminal Case No. 1742, charging
herein private respondent as principal by inducement, Mario Nemenio y
delos Santos and Salim Doe as principals by direct participation and
MoisesAndaya y Julkanain, as accomplice, in the fatal stabbing on
September 6, 1977 in Zamboanga City of Eduardo Pimentel y Orario, the
lawful husband of private respondent. The amended information reads:

18

That on or about September 6, 1977, in the City of


Zamboanga, Philippines, and within the jurisdiction of this
Court, the above-named accused Pilar Angeles de Pimentel,
with deliberate intent to kill her husband, Eduardo Pimentel y
Orario, with whom she was united in lawful wedlock, did then
and there, willfully, unlawfully and feloniously, induce and
offer a sum of money as consideration or prize to said
accused Mario Nemenio y delos Santos and Salim Doe to
kill her said lawfully wedded husband Eduardo Pimentel y
Orario, and because and on account of said promised
consideration or prize which was accepted, the said accused
Mario Nemenio y delos Santos and Salim Doe, did then and
there, willfully and feloniously assault, attack and stab with a
knife with which they were conveniently provided, the person
of said Eduardo Pimentel y Orario, thereby inflicting upon the
latter mortal wound which directly caused his death; that the
above-named accused Moises Andaya y Julkanain although
without having participated directly in the commission of the
offense above- described, took part prior to its commission
by then and there acting as the contact man in the execution
of their plot to kill said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved
and was granted a separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted
by his counsel de oficio, entered on arraignment a plea of guilty. Respondent
judge thereafter rendered judgment convicting accused Mario Nemenio y
delos Santos of murder qualified by the circumstance of prize and rewardand not of parricide as charged in the information; because he "... had no
relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating
the mitigating circumstances of voluntary plea of guilty and lack of instruction
and education, imposed on him the indeterminate penalty of eight (8) years
of prision mayor as the minimum, to fourteen (14) years and eight (8) months
of reclusion temporal as the maximum; to indemnify the heirs of the

deceased Eduardo Pimentel the amount of P12,000.00 and to pay one-fourth


() of the costs of the proceedings (pp. 15-19, rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos
Santos offered to testify against his co-accused, herein private respondent, in
her separate trial earlier granted by the respondent judge in the same
criminal case, now numbered 750. Allowed, he testified as prosecution
witness on February 28, March 6, and March 22, 1978 and as summarized
by the petitioner, his testimony on direct examination contained in seventy-six
(76) pages of transcripts of stenographic notes (pp. 21-44, 57-64, rec.), is to
the effect "...that he and Salim Doe were hired by respondent Pilar Angeles
de Pimentel, for the consideration of P3,000.00 to kill Eduardo Pimentel,
husband of respondent Pilar Angeles de Pimentel, in the evening of
September 6, 1977, in the latter's residence in Zamboanga City, and that it
was respondent Pilar Angeles de Pimentel herself who actually pointed out
the victim Eduardo Pimentel to the witness, who then stabbed the said victim
to death...That he did not know the Identity of the victim Eduardo Pimentel at
the time of the stabbing in the evening of September 6, 1977. He was guided
solely by respondent Pilar Angeles de Pimentel, who pointed out her victim
spouse to him ..." (allegation No. 4, petition, pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct
examination of its witness Mario Nemenio y delos Santos, counsel for private
respondent moved for the holding in abeyance of the cross-examination of
the said prosecution witness until after he (counsel) shall have been
furnished with the transcripts of the stenographic notes of the direct
examination of said prosecution witness (p. 47, TSN, March 22, 1978, p. 64,
rec.); allegation No. 5, petition, p. 5, rec.). The same was granted by the
respondent judge who ordered the resumption of the hearing on April 19,
1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear
because he was not served with a subpoena (p. 108, rec.). Consequently,
the hearing was reset for June 7, 1978 (ibid.)

19

On June 7, 1978, counsel for private respondent commenced his crossexamination of prosecution witness Mario Nemenio y delos Santos, which
cross-examination however was not completed on that session for lack of
material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon
agreement of the parties today's hearing is hereby adjourned
and to be resumed on July 3, 1978 at 8:30 o'clock in the
morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fiftythree (53) pages of transcripts of stenographic notes (pp. 65-84, rec.) had
already "... touched on the conspiracy existing among Salim Doe, witness
Mario Nemenio and respondent Pilar Angeles de Pimentel to kill Eduardo
Pimentel, in the latter's residence in Zamboanga City in the evening of
September 6, 1977, and also on the actual stabbing by witness Mario
Nemenio of the victim Eduardo Pimentel who was pointed out to the witnesskiller by his wife, respondent Pilar Angeles de Pimentel ..." (p. 7, rec.). This is
not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3,
1978 at 8:30 o'clock in the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead
by the Integrated National Police patrols on June 21, 1978 while allegedly
escaping from the San Ramon Prison and Penal Farm, Zamboanga City,
where he was then serving his sentence. Consequently, the completion of his
cross-examination became an impossibility.

On July 20, 1978, petitioner, without any motion on the part of the defense for
the striking out of the deceased witness's testimony, filed with the respondent
court a motion praying for a ruling on the admissibility of the testimony of
deceased witness Mario Nemenio y delos Santos.
On August 4, 1978, respondent judge issued an order declaring as
inadmissible the entire testimony of the deceased witness Mario Nemenio y
delos Santos on the principal ground "... that the defense was not able to
complete its cross-examination of said witness ...", relying on the case of
Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp.
610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after
considering private respondent's comment as well as those of the Solicitor
General and of the respondent judge who was required to file one. On even
date, WE likewise issued a temporary restraining order "... effective
immediately and until further orders from this Court enjoining respondent
District Judge from continuing with the trial of Criminal Case No. 750 (1742)
entitled People of the Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in
ruling as inadmissible the testimony of prosecution witness Mario Nemenio y
delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused
the right to cross-examine the witnesses for the prosecution, is one of the
most basic rights of an accused person under our system of justice. It is a
fundamental right which is part of due process not only in criminal
proceedings but also in civil proceedings as well as in proceedings in
administrative tribunals with quasi-judicial powers (Savory Luncheonette vs.
Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).

20

In almost exactly the same language, both the 1935 and 1973 Constitutions
secured it, thus: "In all criminal prosecutions, the accused ... shall enjoy the
right ... to meet the witnesses face to face ..." (Section 19, Art. IV, Bill of
Rights, 1973 Constitution; Section 17, Art. III, 1935 Constitution). Echoing the
same guarantee, Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant shall have the right to
be confronted at the trial by, and to cross- examine the witnesses against
him. Constitutional confrontation requirements apply specifically to criminal
proceedings and have been held to have two purposes; first and primarily, to
secure the opportunity of cross-examination, and secondarily, to obtain the
benefit of the moral impact of the courtroom atmosphere as it affects the
witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the
witness will give his testimony under oath, thus deterring lying by the threat
of perjury charge; it forces the witness to submit to cross-examination, a
valuable instrument in exposing falsehood and bringing out the truth; and it
enables the court to observe the demeanor of the witness and assess his
credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental
right, WE have ruled that the same can be waived expressly or implied by
conduct amounting to a renunciation of the right of cross-examination
(Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino, et al., supra,
p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56
SCRA 84, 91 [19741). The conduct of a party which may be construed as a
implied waiver of the right to cross-examine may take various forms. But the
common basic principles underlying the application of the rule on implied
waiver is that the party was given the opportunity to confront and crossexamination an opposing witness but failed to take advantage of it for
reasons attributable to himself alone. Thus, where a party has had the
opportunity to cross-examine an opposing witness but failed to avail himself
of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to
remain in the record (Savory Luncheonette vs. Lakas ng Maggagawang
Pilipino, et al.,supra, citing Francisco, Revised Rules of Court, Vol. on
Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and Bradley
vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).

On the other hand, when the cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, as was
the situation in the Lufthansa German Airlines case (64 SCRA 610 [1975])
relied upon by respondent judge, the uncompleted testimony is thereby
rendered incompetent and inadmissible in evidence. WE emphasized in the
said case that "[T]he right of a party to cross-examine the witness of his
adversary is invaluable as it is inviolable in civil cases, no less than the right
of the accused in criminal cases. The express recognition of such right of the
accused in the Constitution does not render the right of parties in civil cases
less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by
the judge in order to avoid unnecessary delays on account of its being unduly
protracted and to needed injunctions protective of the right of the witness
against self-incrimination and oppressive and unwarranted harassment and
embarrassment, a party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such cross-examination has been
finished, the testimony of the witness cannot be considered as complete and
may not, therefore be allowed to form part of the evidence to be considered
by the court in deciding the case" (p. 637). However, WE likewise therein
emphasized that where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct
examination may be taken into account; but when cross-examination is not
and cannot be done or completed due to causes attributable to the party
offering the witness, the uncompleted testimony is thereby rendered
incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on
the admissibility in evidence of his testimony on direct examination has been
extensively discussed thus: "As a general rule, the testimony of a witness,
given on direct examination, should be stricken where there is not an
adequate opportunity for cross-examination, as where the witness by reason
of his death, illness, or absence cannot be subjected to cross-examination.
Although the contrary has been held (Scott v. McCann, 24 A. 536, 76 Md.
47), the testimony of a witness, given on direct examination, should be
stricken where there is not an adequate opportunity for cross-examination
(Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party
against whom he testified is, through no fault of his own, deprived of the right
to cross-examine him by reason of his death (Henderson v. Twin Falls
County 80 P. 2d 801, 59 Idaho 97; Twin Falls County, State of Idaho v.

21

Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358), or as a result of the
illness of the witness or absence, or a mistrial ordered. The direct testimony
of a witness who dies before conclusion of the cross-examination can
be stricken only insofar as not covered by the cross-examination (Curtice v.
West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696),
and absence of a witness is not enough to warrant striking his testimony for
failure to appear for further cross-examination where the witness has already
been sufficiently cross-examined (Lew Choy v. Lim Sing 216 P. 888, 125
Wash 631), or the matter on which further cross-examination is sought is not
in controversy (supra). It has been held that a referee has no power to strike
the examination of a witness on his failure to appear for cross-examination
where a good excuse is given (In re Crooks, 23 Hun 696)" [98 CJS 126-127,
Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination
without fault upon his part, as in the case of the illness or death of a witness
after direct examination, it is generally held that he is entitled to have the
direct testimony stricken from the record. This doctrine rests on the common
law rule that no evidence should be admitted but what was or might be under
the examination of both parties, and that exparte statements are too
uncertain and unreliable to be considered in the investigation of controverted
facts (Wray vs. State, 154 Ala 36, 45 So 697; People vs. Manchetti, 29 Cal.
2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del 304, 187
A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank &
Trust Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held,
however, that the trial court did not abuse its discretion in refusing to
discharge the jury where the state witness collapsed before crossexamination was completed, it being shown thatno motion to strike the
testimony was made, that it was not indicated what further information was
sought to be produced by further cross-examination, and that the witness'
testimony was largely cumulative (Banks vs, Commonwealth, 312 Ky 297,
227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx

... where the death or illness prevents cross-examination


under such circumstances that no responsibility of any sort
can be attributed to either the witness of his party, it seems
harsh measure to strike out all that has been obtained on the
direct examination. Principle requires in strictness nothing
less. But the true solution would be to avoid any inflexible
rule, and to leave it to the trial judge to admit the direct
examination so far as the loss of cross-examination can be
shown to him to be not in that instance a material loss.
Courts differ in their treatment of this difficult situation;
except that by general concession a cross-examination
begun but unfinished sufices if its purposes have been
substantially accomplished
xxx xxx xxx

examination of petitioner's witness was a fortuitous event as he was killed, as


per the pleadings submitted in this action, by the law enforcers (Integrated
National Police Patrols) after his escape from prison. As a matter of fact,
respondent judge, in his questioned order, did not lay any basis for the
application of the Lufthansa ruling as he failed to make any finding that the
non-completion was due to petitioner, the party offering the witness, whose
testimony he declared as inadmissible in evidence. A reading of the
questioned order reveals that respondent judge ruled as inadmissible said
questioned testimony mainly because private respondent can no longer finish
her cross-examination; hence incomplete. However, private respondent
advanced in this action the cavalier theory that the failure of her counsel to
complete his cross-examination of petitioner's witness was due to the fault of
or was attributable to the petitioner, People of the Philippines, because it was
the very agents of State who killed its own witness; hence, making the
questioned testimony of petitioner's witness inadmissible, per the Lufthansa
ruling.

(Vol. II, P. 108, Emphasis supplied).


II
1. Respondent judge's full reliance on the Lufthansa German Airlines case
cannot be sustained. To be sure, while the cross-examination of the witness
in the aforesaid Lufthansa case and that of the witness in the present action
were both uncompleted, the causes thereof were different in that while in the
present case it was the death of the witness, in the Lufthansa case, it was
the unjustified and unexplained failure of Lufthansa to present its witness on
the scheduled date for his cross-examination which had already been
preceded by several postponements initiated by Lufthansa itself, thus
depriving the other party the opportunity to complete the cross-examination
of said witness. Consequently, this Court therein correctly ruled as
inadmissible the testimony of the said witness on the principle that "... when
cross-examination is not and cannot be done or completed due to causes
attributable to the party offering the witness, the uncompleted testimony is
thereby rendered incompetent ..." (supra, at p. 636). As clear as day, the
Lufthansa ruling therefore applies only if there is a finding that the cause for
non-completion of the cross-examination of a witness was attributable to the
very party offering the said witness. Consequently, the same is inapplicable
to the instant action as the cause for the non-completion of the cross-

22

The contention does not deserve serious consideration. There was no finding
nor any showing as the same is farfetched or inconceivable that the killing of
the witness of petitioner by its own agents was ill-motivated. The prosecution
did not order the shooting of the government witness. He was shot while
escaping from prison. It is petitioner's cause which will possibly suffer from
said death; not the cause of private respondent. It may be true that the
escape of the said witness and his consequent death may be attributable to
the negligence of petitioner's agents; but such negligence may not bind the
petitioner as to pre-judicially affect its cause and interest the prosecution
of criminal offenses by reason of the generally accepted principle that the
State is not bound by the negligence or tortious acts of its agents. As the
cause of non-completion was, as aforesaid, beyond the control of the
prosecution, respondent judge's questioned order cannot be sustained on the
basis of the Lufthansa ruling which, as aforestated, was principally anchored
on the finding that the cause of the non-completion of the cross-examination
of the therein witness was attributable to the very party offering him as a
witness.
2. On the other hand, WE find no merit in petitioner's contention that the
testimony of its deceased witness is admissible on the ground that private
respondent had waived her right to cross-examine the witness and that the

cause of non-completion was attributable to said private respondent. As


correctly pointed out by private respondent and sustained by respondent
judge, petitioner is not justified in attributing fault to her (private respondent)
and in contending that she is deemed to have partly lost already the right of
cross-examination by not availing of the right to cross-examine the witness
Mario Nemenio on March 22, 1978 or right after his direct examination was
closed and delaying until the lapse of two and a half (2) months thereafter
before making such cross-examination; because while it is true that her
counsel did not immediately start with his cross-examination of the deceased
witness on March 22, 1978, he did avail, however, of such right on the same
day by initially obtaining an opportunity to make preparations for an effective
exercise thereof considering the nature of the case a capital one and
the length of the direct examination; three sittings on three different dates or
on February 28, 1978, March 6, 1978 and March 22, 1978. Hence, there was
no waiver of her right of cross-examination. Moreover, the deferment of the
cross-examination of the witness requested by private respondent on March
22, 1978 was approved by respondent judge without any objection on the
part of petitioner (pp. 45, 46, 64, rec.). And on the date for the crossexamination of the witness Mario Nemenio or on April 19, 1978, counsel for
private respondent failed to cross-examine the said witness not of his own
design but because said witness failed to appear on that date for the reason
that due to the oversight of the court's personnel the subpoena for said
witness was not served on him at the San Ramon Prison and Penal Farm
(pp. 90, 108, rec.). And respondent judge had to re-set the hearing for the
cross-examination of the witness by the private respondent only to June 7,
1978 because of the fact that respondent judge took, with the approval of the
Supreme Court, his summer vacation the whole month of May, 1978.
It is thus apparent that no fault can be imputed to the private respondent for
the length of time that elapsed before her counsel was able to commence his
cross-examination of the witness. And private respondent's counsel was not
able to complete his cross-examination of the witness on June 7, 1978 for
lack of material time by reason of which and upon agreement of the parties
the hearing was adjourned and ordered resumed on July 3, 1978 (p. 84,
rec.).
It appears, therefore, that the situation is one whereby the cause of noncompletion of the cross-examination of the deceased witness was attributed

23

neither to the fault of petitioner nor the private respondent. Consequently, the
admissibility or inadmissibility of the testimony of the said witness cannot be
resolved on the basis of the rule enunciated in the Lufthansa case.
III
There is merit in the contention of the petitioner that the questioned
testimony of its deceased witness is admissible in evidence because private
respondent's counsel had already "... rigorously and extensively crossexamined witness Mario Nemenio on all essential elements of the crime
charged (parricide), all of which have been testified upon by said witness in
his direct examination-in-chief, and consequently, the cross-examination-inchief, has already been concluded."
The cross-examination was completed insofar as the essential elements of
the crime charged parricide, fact ofkilling-is concerned. What remained
was merely the cross-examination regarding the price or reward, which is not
an element of parricide, but only an aggravating circumstance (par. 11, Art.
14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under
Article 246 of the Revised Penal Code.
The elements of the crime of Parricide are that a person was
killed; that the killing was intentionally caused by the
accused; and that the victim is a parent or child, whether
legitimate or illegitimate, or the lawful spouse, or legitimate
ascendant or descendant of the accused. Once these facts
are established beyond reasonable doubt, conviction is
warranted (See Aquino, The Revised Penal Code, 1961 Ed.,
Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently
shown to be the lawful husband of private respondent Pilar
Pimentel by means of the marriage contract executed

between them on May 18, 1971 ... marked as Exhibit 'R' for
the prosecution ...
The cross-examination of witness Mario Nemenio by the
counsel for private respondent on June 7, 1978 touched on
the conspiracy, and agreement, existing among Salim Doe,
witness Mario Nemenio and private respondent Pilar
Pimentel to kill Eduardo Pimentel, in the latter's residence in
Zamboanga City in the evening of September 6, 1977, and
also on the actual stabbing by witness Mario Nemenio of the
victim Eduardo Pimentel who was pointed out to the witnesskiller by his wife, the private respondent Pilar Pimentel
herself... The matter of consideration or price of P3,000.00,
which both the public and private respondents maintain was
not touched in the cross-examination of witness Mario
Nemenio, is not an essential element of the crime of
parricide. Price or consideration is merely an aggravating
circumstance of the crime charged, not an essential element
thereof. The failure to touch the same in the crossexamination would not at all affect the existence of the crime
of parricide. Furthermore, there is no showing or even the
slightest indication that the witness or his testimony would be
discredited if he was cross-examined on the promised
consideration. The probability is rather very great that the
witness would only have confirmed the existence of the
promised consideration were he cross-examined on the
same.
From the foregoing discussion, it is submitted that the
rigorous and searching cross-examination of witness Mario
Nemenio on June 7, 1978, practically concluded already the
cross-examination-in-chief, or has already substantially
accomplished the purpose of the cross-examination, and
therefore, the failure to pursue the privilege of further crossexamination, would not adversely affect the admissibility of
the direct testimony of said witness anymore (pp. 159162,
rec.).

24

Private respondent did not dwell on the aforesaid points in her memorandum.
Because the cross-examination made by the counsel of private respondent
of the deceased witness was extensive and already covered the subject
matter of his direct testimony as state witness relating to the essential
elements of the crime of parricide, and what remained for further crossexamination is the matter of price or reward allegedly paid by private
respondent for the commission of the crime, which is merely an aggravating
circumstance and does not affect the existence of the offense charged, the
respondent judge gravely abused his discretion in declaring as entirely
inadmissible the testimony of the state witness who died through no fault of
any of the parties before his cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT
JUDGE IS HEREBY SET ASIDE; THE RESTRAINING ORDER OF
DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED; AND
RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY
ORDERED TO PROCEED WITH THE TRIAL OF CRIMINAL CASE NO. 750
(1742) AND TO ADMIT AND CONSIDER IN DECIDING THE CASE THE
TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS
SANTOS EXCLUDING ONLY THE PORTION THEREOF CONCERNING
THE AGGRAVATING CIRCUMSTANCE OF PRICE OR REWARD WHICH
WAS NOT COVERED BY THE CROSS-EXAMINATION. NO COSTS.

G.R. No. L-51513 May 15, 1984


THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
The Solicitor General for plaintiff-appellee.
Francisco S. Pagaduan, Sr. for accused-appellants.

ABAD SANTOS, J.:


In a verified complaint filed on October 8, 1974, with the Municipal Court of
Pulilan, Bulacan, ANASTACIA DE JESUS accused GERARDO FAJARDO,
RUFINO BULANADI and FELICIANO GOROSPE of the crime of forcible
abduction with rape. (Expediente, p. 1.) The crime was said to have been
committed on September 30, 1974, starting in Plaridel, Bulacan, thru Pulilan,
and thence to Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan
received the complaint and conducted a preliminary investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and
Feliciano Gorospe were again named but Gerardo Fajardo was dropped and
OSCAR ALVARAN was named instead. The date when the crime was said to
have been committed was changed from September 30, 1974, to September
25, 1974. (Id, p. 41.)
Again Judge Granados conducted a preliminary investigation and on
November 18, 1974, he issued an order for the arrest of Bulanadi, Gorospe
and Alvaran and fixed their bail at P15,000.00 each. (Id, p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5,
1975, but on that day neither Bulanadi or Gorospe appeared for which

25

reason Judge Granados declared that they had waived their right thereto and
elevated the case to the Court of First Instance of Bulacan, (Id, p. 87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI
of Bulacan an information for forcible abduction with rape against Gorospe
and Bulanadi. It was docketed as Criminal Case No. 1293-M. (Id., p. 88.) But
on July 25, 1975, Fiscal Kliatchko filed an amended information which reads:
That on or about the 25th day of September, 1974, in the
municipality of Plaridel province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the said
accused Feliciano Gorospe and Rufino Bulanadi, together
with one Oscar Alvaran who is still at large, conspiring and
confederating together and helping one another, did then
and there wilfully, unlawfully, and feloniously, by means of
force, violence and intimidation, and with lewd design abduct
the complaining witness Anastacia de Jesus, an unmarried
woman, 14 years of age, by then and there taking and
carrying her to Talavera, Nueva Ecija, against her will and
with-out her consent, and upon arrival there, the said
accused by means of violence, force and intimidation have
carnal knowledge of the said Anastacia de Jesus against her
will and consent. (Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15,
1975. The accused and their counselde parte had long been notified that the
case was to be tried on that day but they did not appear so the former were
tried in absentia, After hearing part of the testimony of Anastacia de Jesus,
the complainant, Judge Valdellon was transferred to Metro Manila and she
was replaced by Judge Fidel P. Purisima who finished the trial. But Judge
Purisima issued an order on March 10, 1976, wherein he inhibited himself
from deciding the case. He said, "Considering that Judge Alfredo V.
Granados is a first cousin by affinity of the undersigned Presiding Judge and
if only to make sure that the decision to be rendered in this case shall be
above suspicion and considering further the gravity of the offense charged,
the undersigned Presiding Judge hereby inhibits himself from deciding this
case." (Id, pp. 386-387.) So it was Judge Jesus R. de Vega who decided the
case and rendered the following judgment:

PREMISES CONSIDERED, the Court finds both the herein


accused Gorospe and Bulanadi guilty beyond reasonable
doubt of rape committed against Anastacia de Jesus as
charged in the information. Considering the legal principle
that each of the herein accused is responsible not only for
the act of rape committed personally by him but also for the
rape committed by his other co-accused on account of the
finding of conspiracy or cooperation in the commission of the
said crime charged against them, the Court accordingly
sentences each of the herein accused Gorospe and
Bulanadi to suffer two (2) perpetual penalties of reclusion
perpetua to be served in accordance with Art. 70 of the
Revised Penal Code, with all the accessory penalty of the
law.
Both accused are further ordered to indemnify Anastacia de
Jesus in the amount of P40,000.00 for actual exemplary and
moral damages; and to pay the costs. (Id, p. 419.)
The case is now before Us on appeal.
The People's version of the facts is as follows:
Complainant Anastacia de Jesus, a 14 year-old girl at the
tune of the incident, single, student at the Calumpit Institute,
Bulacan, and resident of Pugo, Calumpit, Bulacan, was, at
about 10:00 and of September 25, 1974, at Plaridel,
Bulacan, in front of the Caltex Station, intending to cross the
street to buy a book. She was looking for a book, entitled
"Diwang Guinto" (pp. 2-5, t.s.n., Dec. 15, 1975; pp. 17-18,
t.s.n., March 10, 1976; p. 4, t.s.n., March 11, 1976). Two
persons passed by, one of whom was appellant Rufino
Bulanadi who waived a handkerchief across her face, which
affected her consciousness and she felt dizzy but felt that
she was being held and boarded into a motor vehicle (pp. 511, t.s.n., Dec. 15, 1975; p. 18, t.s.n., March 10, 1976).

26

Complainant regained her fun consciousness at about 8:00


o'clock in the evening of September 25, 1974, in a nipa hut
near the irrigation pump, of Gerardo Fajardo, at Calipahan,
Talavera, Nueva Ecija, Inside she saw appellants, Feliciano
Gorospe, Rufino Bulanadi, and Gerardo Fajardo (pp. 11-14,
17, 21, t.s.n., Dec. 15, 1975). They were arguing why she
(complainant) had to be taken by appellants Rufino Bulanadi
and Feliciano Gorospe (p. 16, t.s.n., Dec. 15, 1975).
That evening, at the said nipa hut, complainant was forced to
drink a strange tasting royal soft drink by appellant Feliciano
Gorospe and appellant Rufino Bulanadi, who held her hands
(pp. 21-23, t.s.n., Dec. 15, 1975). After drinking the soft drink
complainant lost consciousness. She woke up only the next
morning with aches and pains all over her body especially
her private part. She found herself naked. Appellants, Rufino
Bulanadi and Feliciano Gorospe, were there by her side
standing when she woke up (pp. 23-26, t.s.n., Dec. 15, 1975;
p. 22, t.s.n., Jan. 12, 1976). Gerardo Fajardo was also there.
All the three of them were naked. Evidently, appellants and
Gerardo Fajardo sexually abused her (p. 27, t.s.n., Dec. 15,
1975; p. 15, t.s.n., March 10, 1976).
Appellants and Gerardo Fajardo forcibly kept Anastacia de
Jesus for nine (9) days in the hut, with appellants, and
Gerardo Fajardo taking turns in sexually abusing her during
the night. During the day she was guarded by Oscar Alvaran.
After her nine-day ordeal, Gerardo Fajardo brought her to
the house of Cirilo Balanagay at Bancal Talavera, Nueva
Ecija (pp. 20-23, t.s.n., March 12, 1976). When Gerardo
Fajardo left the house, Anastacia de Jesus related to Cirilo
Balanagay what the appellants and Fajardo did to her. Cirilo
Balanagay, therefore, wired Anastacia's parents and then
brought her to the Talavera Municipal Building where she
executed an affidavit about her ordeal. She also told the PC
of her harrowing experience (pp. 23-25, t.s.n., March 12,
1976).

When complainant was brought home, her friends readily


noticed that she was not her usual self anymore as "she
cannot answer and she just kept on shouting and crying and
trembling", saying "keep away from me, have pity on me."
(pp. 14-15, t.s.n., Oct. 14,1975).
Complainant Anastacia de Jesus was physically examined
on October 6, 1974, by Dra. Norma V. Gungon who issued a
medical certificate on her findings, as follows:
Patient examined with the presence of a
ward Nurse. She is conscious, coherent
answers to questions intelligently.
Physical Examination
Breast symetrical conical in shape, areola
pigmented.
Mons pubis pubic hair scanty in amount.
Internal Examination:
Hymen presence of healed lacerations, at
11, 5, 3 o'clock.
Vaginal introctus admits 2 fingers w/
difficulty.
Cervix small, closed
SMEAR FOR SPERMATOZOA NEGATIVE' (Exh. G-1, P.
6, rec.) (Brief, pp. 3-6.)
The appellants make the following assignment of errors:
I. THE LOWER COURT ERRED IN FINDING THE
ACCUSED GUILTY OF THE CRIME OF RAPE WHICH THE

27

PROSECUTION ALLEGES TO HAVE BEEN COMMITTED


IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN
THE PROVINCE OF BULACAN.
II. THE HONORABLE JUDGE JESUS R. DE VEGA,
PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE
OF BULACAN, BRANCH II ERRED IN RENDERING THE
DECISION APPEALED FROM WHEN HE HAS NO
AUTHORITY TO DO SO BECAUSE THIS CASE WAS
ENTIRELY TRIED IN THE COURT OF FIRST INSTANCE
OF BULACAN, BRANCH I, PRESIDED OVER BY
HONORABLE JUDGE FIDEL P. PURISIMA.
III. THE LOWER COURT ERRED IN ADMITTING THE
TESTIMONY OF GERARDO FAJARDO WHOSE CROSSEXAMINATION WAS NOT FINISHED DUE TO HIS
FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
ARREST.
IV. THE LOWER COURT ERRED IN FINDING THE
ACCUSED FELICIANO GOROSPE AND RUFINO
BULANADI GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF RAPE. (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the
complaint not filed in Plaridel, Bulacan or Talavera, Nueva Ecija but in
Pulilan, Bulacan? (2) Since the rape was committed in Talavera, why was the
case tried by the CFI of Bulacan and not by the CFI of Nueva Ecija?
The above questions are easily answered. Abduction is a persistent and
continuing offense. (U.S. vs. Bernabe, 23 Phil. 154 [1912].) Hence it may be
"tried in the court of the municipality or province wherein the offense was
committed or any one of the essential ingredients thereof took place." (Rules
of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had
jurisdiction because the abductors and their captive passed Pulilan on their
way from Plaridel to Talavera. And the CFI of Bulacan (as well as the CFI of
Nueva Ecija) had jurisdiction because essential elements of the offense took
place in Bulacan (and also in Nueva Ecija).

The second assignment of error asserts that Judge de Vega had no authority
to render the decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the
case also "ordered to have the same re-raffled off and assigned to another
branch. " The case was presumably re-raffled to Judge de Vega who issued
an order on June 23, 1978, which states, inter alia:
Considering the foregoing, and in order to be properly
guided in the further disposition of this case, and to obviate
possible objections and criticisms which may come from any
or both parties in the final disposition thereof, the Court
resolves to require the parties to submit their respective
written comments within fifteen (15) days from receipt hereof
on the propriety and advisability of the decision in this case
to be rendered by the Presiding Judge of this Court; and to
call a conference to hear further the views and arguments of
the parties on this question, which is hereby set on July 18,
1978, at 1:30 p.m. Let notices be sent accordingly, to all
parties concerned. (Expediente, p. 390.)
Neither the comments nor the memorial of the conference are in
the expediente but on March 28, 1979, counsel for the accused filed a motion
stating:
2. That the above promulgation was held in abeyance, and
then the accused received the order dated June 13, 1978
where the Court, called the parties to a conference on July
18, 1978;
3. That the parties appeared before this Court on July 18,
1978;
4. That up to the present a Decision in the above entitled
case has not yet been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable
Court that the above entitled case be resolved. (Id., p. 401.)

28

And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)
We hold that Judge de Vega had the power to decide the case. "Where a
court of first instance is divided into several branches each of the branches is
not a court distinct and separate from the others. Jurisdiction is vested in the
court, not in the judges, so that when a complaint or information is filed
before one branch or judge, jurisdiction does not attach to said branch of
judge alone, to the exclusion of the others. Trial may be had or proceedings
may continue by and before another branch or judge." (Lumpay, et al. vs.
Moscoso, 105 Phil. 968 [1959].)
It is to be recalled Chat in the original complaint filed by Anastacia de Jesus
before the Municipal Court of Pulilan, Gerardo Fajardo was one of the
accused. In the amended complaint, Fajardo's name was dropped and Oscar
Alvaran was named instead. Nonetheless, when Anastacia testified she said
that she was brought to the house of Gerardo Fajardo in Talavera, Nueva
Ecija; that when she woke up after she was forced to drink something,
Fajardo was there with Gorospe and Bulanadi, and all three were naked; that
Fajardo was one of those who raped her; and that it was Fajardo who
brought her to Cirilo Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an
answer but perhaps he decided to cooperate with the complainant because
soon after she finished her testimony the prosecution presented Fajardo as
its next witness.
Fajardo testified, among other things, that he was given a lift from the
monument in Caloocan City to Nueva Ecija by Gorospe and Bulanadi; that in
Plaridel, between the market and the bridge, the two forced Anastacia to go
with them; that Anastacia was brought to his house and later transferred to a
nipa hut near an irrigation pump; that in the nipa hut Anastacia was
undressed by Gorospe; that Gorospe, Bulanadi and Alvaran took turns in
spending 20 to 30 minutes inside the hut with Anastacia; and that he did not
have sex with her.
It can thus be seen that Fajardo was a key witness. His testimony
corroborated that of Anastacia in material matters.

His direct examination took place on June 23 and 24, 1976. His crossexamination commenced on August 4, 1976 (whole day), and was continued
on August 9, 1976. The cross-examination is recorded on pages 112 to 230
of the transcript. But the defense did not indicate that it was through with
Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976.
(Expediente, p. 204.) On the latter date, Fajardo failed to appear and the
case was re-scheduled to be heard on September 13, 1976. (Id. p. 208.) On
September 13, 1976, Fajardo again failed to appear and the case was re-set
to September 29, 1976. (Id. p. 222.) Fajardo did not appear on September
29, 1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not
arrested but despite such fact the prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial
court decided the case even though they had not finished cross-examining
Fajardo.
The trial court committed no error in admitting the testimony of Fajardo
although the defense had not finished its cross-examination. An examination
of the transcript of Fajardo's testimony shows that he was subjected to
detailed cross-examination on material points. In fact, the cross-examination
was lengthier than the direct examination. We adopt with approval the
statement of the court a quo on this point:
The records show that the counsel for the accused has
extensively cross examined Fajardo. The Court could not
help but wonder what other matters not yet touched during
the cross-examination of Fajardo could still be elicited from
him that would probably destroy or affect his testimony inchief. If the counsel for the accused expected Fajardo to
testify further on material matters favorable to the cause of
the defense, he should have proffered such further testimony
and entered into the records how the absent witness would
have testified if he were available for further crossexamination. The failure of the said counsel to do so
indicates that every material point has been asked from
Fajardo during the time he was under examination.

29

While cross-examination is a right available to the adverse


party, it is not absolute in the sense that a cross-examiner
could determine for himself the length and scope of his
cross-examination of a witness. The court has always the
discretion to limit the cross examination and to consider it
terminated donated if it would serve the ends of justice.
The Court, therefore, hereby resolves to admit the testimony
of Fajardo. This resolution finds support, though indirectly,
from Section 6, Rule 133 of the Rules of Court, which
empowers the court to stop the introduction of further
testimony upon a particular point when the evidence upon it
is already so full that more to the same point cannot
reasonably be expected to be additionally persuasive. The
position herein taken by the Court in brushing aside
technicalities is in accordance with a fundamental rule that
the provisions of the Rules of Court shall be liberally
construed in order to promote their object and assist the
parties in obtaining a just, speedy and inexpensive
determination of every action or proceeding. (Section 2, Rule
1, Rules of Court)." (Id, p. 418.)
Moreover, even if Fajardo's testimony be disregarded the accused may
nonetheless be convicted in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses
those of the prosecution versus those of the defense.
The prosecution's version has already been stated above. We now have to
consider the version of the appellants which is as follows:
On September 30, 1974 at 4: 00 O'clock in the afternoon,
accused Feliciano Gorospe, Barangay Captain of Andal
Alinio district, Talavera, Nueva Ecija, since 1972 up to the
present and at the same time a member of the Sangguniang
Bayan of Talavera, Nueva Ecija, representing tha Barangay
Group, went to the house of his friend, Reynaldo Matias at
Calipahan, Talavera, Nueva Ecija, to attend a birthday party

(pp. 36 & 37, T.s.n., February 7, 1977, CFI). Accused Rufino


Bulanadi, who was a former councilman of Calipahan,
Talavera, Nueva Ecija, also attended said party as he was
also invited (p. 12, T.s.n., February 28, 1977, CFI.). At about
7:00 o'clock in the evening, several teenagers were shouting
in front of the house of Gerardo Fajardo which is ONE
HUNDRED (100) METERS away from the house where the
birthday party was being held (p. 38, T.s.n., February 7, 1977
CFI). The house of Fajardo being within his jurisdiction (pp.
39 & 40 Ibid ), accused Barangay Captain Gorospe
proceeded to the place where the shouts were coming from,
followed by other guests in the birthday party, among whom
was Councilman Rufino Bulanadi (p. 39, Ibid). there were 2
groups of teenagers who were at odds with each other. One
was the group of Gil Nocum and the other, the group of
Isagani Castro. Barrio Captain Gorospe talked with the two
(2) groups of teenagers and he was informed that Fajardo
who promised to give a woman to one group made the same
commitment with respect to the same woman to the other
group (pp. 41 & 42, Ibid). That woman was complainant
Anastacia de Jesus, as there were previous occasions that
Gerardo Fajardo brought women of Ill-repute to his house,
Gorospe called him and asked him why he brought again
another woman of ill-repute to that place. He even asked
Gerardo's wife, Della Fajardo, why she tolerated Gerardo to
bring that kind of woman in their house when they are
already married. She answered that she could not stop him
because he would cause her bodily harm. Gorospe also
called Anastacia and askeed her why she went with Grardo
who is a married man (pp. 44 to 47, Ibid). Thereafter he told
her to leave the place. Gerardo pleaded that Anastacia be
allowed to stay only for that night and he would take her out
of the place the next day.
The following morning, October 1,1974 while accused Rufino
Bulanadi was tying the rope of his carabao to graze in the
subdivision at Calipahan, Talavera, Nueva Ecija, Gerardo
approached him and said, "Konsehal maaari bang itira ko
and babaing dala-dala ko sa bahay sa balong-balong ng

30

kalabaw mo" ( Councilman, may I be allowed to let the girl


who is with me in my house to live or stay in the shade of
you carabao). He pleaded with Bulanadi because according
to him his wife was quarrelling with him because of that
woman (pp. 21-23, T.s.n., February 28, 1977, CFI). Bulanadi
vehemently refused and reminded Gerardo about the
warning of Barrio Captain Gorospe to get that woman out of
the place. Gerardo left, angry and was murmuring (p.
23, Ibid). Bulanadi left his carabao to graze and proceeded
to his field to see the laborers who were pulling grasses
there, The farmers in Talavera are organized into groups of
Twenty (20) for the systematic distribution of irrigation water,
each with a chairman. Bulanadi was the chairman of his
group. Because there was shortage of water he started the
engine of his irrigation pump. lie had his lunch in the field. At
3:00 o'clock in the afternoon, a son of an owner of a
neighboring field informed him that water was already being
released from the Sapang Baca Dam. Upon verifying that
water was really coming, he stopped the motor of his
litigation pump. (pp. 22-26, Ibid), He cleaned the passage of
water to his field for two (2) hours. At 5:00 o'clock in the
afternoon, he went home to eat because he was hungry. He
left the pump house open because he intended to go bad
after supper. When he came back, he saw that there was
light inside his pump house. As he was approaching,
Gerardo met him and pleaded that he and the woman be
allowed to sleep there. Bulanadi refused saying, I just bought
this pump recently, "Sasalahulain mo ba ito? Hindi pwede
yon Gerardo, kamalasan yon." (Are you going to tarnish
this? That cannot be Gerardo, that will bring me bad luck)
(26-29, Ibid). Bulanadi saw Anastacia playing with the water.
He told her not to make the water dirty as it is being used as
drinking water and Anastacia said, "suya naman kayo kay
selan-selan mong matanda." (You are very touchy old man).
When Bulanadi told them that he would report them to the
Barrio Captain, they pleaded to him not to do so, but just the
same, he went to the Barrio Captain to report.

When Bulanadi arrived in the house of Barrio Captain


Feliciano Gorospe, the latter was conversing with Oscar
Alvaran (p. 31, Ibid & p. 49, t.s.n., February 7, 1977). Upon
receiving the report, the 3, Rufino Bulanadi, Feliciano
Gorospe and Oscar Alvaran, went to the pump house. Barrio
Captain Gorospe talked to Gerardo Fajardo and Anastacia
de Jesus saying. "Talaga palang matitigas ang ulo ninyo,
pinaalalahanan ko na kayo, ayaw pa ninyong lumayo dito!"
(You are really hard headed, I have already warned you but
still you did not leave this place). Bulanadi and Gorospe
were very angry and Anastacia got angry too and said that it
is none of their business what she and Gerardo do. She
rushed towards the two as if to strike them but Gerardo
stopped her and pleaded with the two to allow them to stay
there just for that night because he said, "aabutan na kami
ng curfew" (we will be curfewed). Gorospe and Bulanadi
relented and left warning them that if they would still be there
the next morning they will report the matter to the P.C. (pp.
31-35, Ibid & pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo
Fajardo and Anastacia de Jesus left the pump house of
Bulanadi. Gerardo brought Anastacia to the house of his
cousin Floring at Munoz, Nueva Ecija, where they stayed
that night. The following morning, October 3, 1977 he
brought her to the house of his uncle Cirilo Balanagay at
Bakal I, Talavera, Nueva Ecija (Exhibit I). He told his uncle
that Anastacia is a student, and he requested Balanagay to
devise ways and means to return her to her parents because
he might be placed in trouble (p. 7, T.s.n., October 12, 1974,
Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where
Anastacia was and volunteered to take her to her parents,
but she said she would think it over. That night, October 3,
1974, Balanagay brought her to the house of Barrio Captain
Andres Nazar of Bakal I, Talavera, Nueva Ecija, to inform
him of Anastacia's presence in that house, and also so that

31

she could relate everything to the Barrio Captain (p. 10,


T.s.n., October 12, 1974, Municipal Court of Pulilan). There
was a regulation in Bakal I, Talavera, Nueva Ecija, that a
stranger who arrives there should submit a statement as to
the reason of his presence in the barrio. Barrio Captain
Andres Nazar took the statement of Anastacia de Jesus (p.
4, T.s.n., February 7, 1977, CFI) which was in the form of
question and answer. This was reduced in writing by
Councilman Aniceto Damian who was summoned for that
occasion, in the presence of the barrio captain himself, Cirilo
Balanagay, and his wife. The statement of Anastacia de
Jesus marked as Exhibit "1" was signed by Councilman
Aniceto Damian and Cirilo Balanagay as witnesses (pp. 7 to
14, T.s.n., February 7, 1977 CFI). To protect the interest of
Anastacia, Barrio Captain Nazar asked Balanagay to notify
her parents (p. 13, Ibid).
On October 4, 1974, Cirilo Balanagay accompanied
Anastacia to the Police Department of Talavera, Nueva Ecija,
where she made a report (Exhibit 13). Then he wired the
family of Anastacia at Pungo, Calumpit, Bulacan. On
October 6, 1974 Anastacia's relatives arrived, composed of
her uncle, Enrique de Jesus, brother of Victoriano de Jesus,
sister Lolita de Jesus and brother-in-law Adriano Nicolas.
They accompanied her to the Police Department of Talavera,
where she made a statement, Exhibit 5 which is also Exhibit
C (p. 3, T.s.n., June 16, 1976, CFI). That same date, October
6, 1974 she was examined by Dr. Norma Gongon at the Dr.
Paulino J. Garcia Memorial Research and Medical Center
upon request of the Police Department of Talavera, Nueva
Ecija and a Medical Certificate was issued to her (Exhs. "G",
"G-1", "G-2", "H" and "H-1").
In the meantime, on October 4, 1974, accused Barrio
Captain Feliciano Gorospe and his wife, with Mayor and Mrs.
Bonifacio de Jesus of Talavera, Nueva Ecija, Engineer and
Mrs. Bacani and 3 other couples went to Baguio City to
attend the convention of the Luzon Area Community

Christian Family Movement at St. Louise University. They


rented a house and stayed there for THREE (3) days,
October 4, 1974 to October 6, 1974. At 5:00 o'clock in the
afternoon on October 6, 1974, when the convention ended,
they went home to Talavera, Nueva Ecija (pp. 10-12, T.s.n.,
February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o'clock in the morning,
accused Rufino Bulanadi on his way to the field to cut
grasses for his carabao, passed by a store to buy cigarette.
To his surprise he saw Gerardo there and he asked him
where his "alaga" was (the girl he is taking care of) and
Gerardo answered, "Pinagpapahinga ko siya sa Bakal at
pinakawalan ko na" (I let her rest in Bakal and I have already
let her go). Gerardo further said that the girl was intending to
file a case against him, and Bulanadi told him, "Mabuti nga
sa iyo, ayaw mo kasing tumigil sa masamang negosyo mo".
(That's good for you because you don't want to stop your
bad business). When Bulanadi proceeded on his way to the
field, a jeep suddenly stopped beside him. On the jeep were
PC Sgt. Jimenez, several policemen and Anastacia de
Jesus. Sgt. Jimenez immediately got off the jeep, tied
Rufino's hand with his own rope that he brought with him to
be used in tying the grasses that he would cut, and brought
him to the Municipal Building of Talavera, Nueva Ecija,
where he was locked in jail. When asked about Gerardo, he
informed the P.C. that he saw him in the store. Gerardo was
likewise arrested. Bulanadi was asked about the case and
he said he did not know anything about it (pp. 37 to 40,
T.s.n., February 28, 1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife
from Baguio in the evening of October 6, 1974, his mother
informed him that a policeman was looking for him. He told
his mother that he would just go to the Municipal Building the
following day because he was tired. The next day, October 7,
1974 at 8:30 o'clock in the morning, he went to the Municipal
Building. Upon his arrival, Gerardo met him, put his arms on

32

his shoulders and said that the case can be settled in the
amount of P200.00. Gorospe said "tarantado ka pala" (You
son of a bitch). "I will not give even a single centavo because
you are the one responsible for this. I have nothing to do
with this case." Gorospe proceeded to see Sgt. Jimenez who
told him that the case was transferred to Cabanatuan City.
The 3 of them, Bulanadi, Gorospe and Fajardo were brought
to the PC headquarters where they were interviewed one
after the other, after which Gorospe and Bulanadi were sent
home.
The complainant filed the case in the Municipal Court of
Pulilan, Bulacan, on October 8, 1974, two (2) days after she
had gone home in Pungo, Calumpit, Bulacan (Exhibit 8).
Gerardo Fajardo who was in the custody of the Police
Department of Talavera, Nueva Ecija was taken by the
Policemen of Pulilan, Bulacan.
On October 22, 1974 while the case was being investigated
by Municipal Judge Alfredo Granados where Anastacia had
already testified on October 9, 1974, Anastacia again
executed another affidavit because that was what her lawyer,
Atty. Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On
the same date Gerardo Fajardo executed another statement
in the Police Department of Pulilan Bulacan. Thereafter,
complainant filed an Amended Complaint wherein Gerardo,
against whom she was originally complaining against, was
excluded as one of the accused to be utilized as her witness,
and Oscar Alvaran was included for the first time. The
alleged date of the incident was changed from September
30, 1974 to September 25, 1974. Subsequently the case
was elevated to the Court of First Instance of Bulacan,
Branch I. (Brief, pp. 12-21.)
The version of the appellants does net inspire belief because it appears to
have been contrived. The appellants portray Anastacia as wanton and
unchaste woman a prostitute. But one's credulity has to be unduly stretched
in order to buy the line that a girl of 14 years who was still going to school

was a prostitute who went far away from her home in order to peddle her
body. The appellant's version is simply too crude to be convincing.
Opposed to the appellants' version is the affirmative narration of events
made by Anastacia which were corroborated by Gerardo Fajardo. The story
winch she unfolded could have been inspired only by her thirst for justice. In
her quest she had to live her ordeal all over again for a lengthy period
because she was on the witness stand on December 15, 1975; January 12,
March 10, March 11, May 3 and June 16, 1976. During all those days she
had to bare in public her shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they
were in details rather than in the highlights of her terrible experience and
could very well be attributed to her tender age and confused state of mind
caused by her private hell.

guilty of three (3) rapes because in a conspiracy the act of one is the act of
all. We cannot agree in respect of the participation of Fajardo. Since Fajardo
was dropped from the complaint his guilt had not been established. However,
We agree with the Solicitor General's observation "that a motor vehicle was
used to bring her [Anastacia de Jesus] from Plaridel, Bulacan, where she
was first deceived and drugged, and then taken to an isolated uninhabited
place at a nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva
Ecija, where she was abused, two (2) aggravating circumstances are
present, namely use of motor vehicle and uninhabited place (Art. 14,
R.P.C.)," so that death is the proper penalty. (Brief, pp. 14-15.) However, for
lack of the necessary number of votes the death penalty cannot be imposed.
WHEREFORE, the judgment of the court a quo is hereby affirmed in all
respects. Costs against the appellants.
SO ORDERED.

The Solicitor General states that Gerardo Fajardo, the discharged state
witness, also committed rape hence the appellants should each be found

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