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i.

Marital disqualification

Alvarez vs Ramirez

THIRD DIVISION

G.R. No. 143439 October 14, 2005

MAXIMO ALVAREZ, Petitioner,


vs.
SUSAN RAMIREZ, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari1 assailing the Decision2 of the Court of Appeals
dated May 31, 2000 in CA-G.R. SP No. 56154, entitled "Susan Ramirez, petitioner, versus, Hon.
Benjamin M. Aquino, Jr., as Judge RTC, Malabon, MM, Br. 72, and Maximo Alvarez,
respondents."

Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN
for arson3 pending before the Regional Trial Court, Branch 72, Malabon City. The accused is
Maximo Alvarez, herein petitioner. He is the husband of Esperanza G. Alvarez, sister of
respondent.

On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the
first witness against petitioner, her husband. Petitioner and his counsel raised no objection.

Esperanza testified as follows:

"ATTY. ALCANTARA:

We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor.

COURT:

Swear in the witness.

xxx

ATTY. MESIAH: (sic)

Your Honor, we are offering the testimony of this witness for the purpose of proving that the
accused Maximo Alvarez committed all the elements of the crime being charged particularly that
accused Maximo Alvarez pour on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9,
Phase 1-C, Dagat-dagatan, Navotas, Metro Manila, the house owned by his sister-in-law Susan
Ramirez; that accused Maximo Alvarez after pouring the gasoline on the door of the house of
Susan Ramirez ignited and set it on fire; that the accused at the time he successfully set the house
on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez, the members of the
family as well as Esperanza Alvarez, the estranged wife of the accused; that as a consequence
of the accused in successfully setting the fire to the house of Susan Ramirez, the door of said
house was burned and together with several articles of the house, including shoes, chairs and
others.

COURT:

You may proceed.

xxx

DIRECT EXAMINATION

ATTY. ALCANTARA:

xxx

Q: When you were able to find the source, incidentally what was the source of that scent?

A: When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister
(and witness pointing to the person of the accused inside the court room).

Q: For the record, Mrs. Witness, can you state the name of that person, if you know?

A: He is my husband, sir, Maximo Alvarez.

Q: If that Maximo Alvarez you were able to see, can you identify him?

A: Yes, sir.

Q: If you can see him inside the Court room, can you please point him?

A: Witness pointing to a person and when asked to stand and asked his name, he gave his name
as Maximo Alvarez."4

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

On June 30, 1999, petitioner, through counsel, filed a motion5 to disqualify Esperanza from
testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital
disqualification.
Respondent filed an opposition6 to the motion. Pending resolution of the motion, the trial court
directed the prosecution to proceed with the presentation of the other witnesses.

On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza
Alvarez from further testifying and deleting her testimony from the records.7 The prosecution
filed a motion for reconsideration but was denied in the other assailed Order dated October 19,
1999.8

This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-
MN, to file with the Court of Appeals a petition for certiorari9 with application for preliminary
injunction and temporary restraining order.10

On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the
assailed Orders issued by the trial court.

Hence, this petition for review on certiorari.

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

Section 22, Rule 130 of the Revised Rules of Court provides:

"Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband
nor the wife may testify for or against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal case for a crime committed by one
against the other or the latters direct descendants or ascendants."

The reasons given for the rule are:

1. There is identity of interests between husband and wife;

2. If one were to testify for or against the other, there is consequent danger of perjury;

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

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

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

In Ordoo vs. Daquigan,13 this Court held:

"We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in
Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too narrow; and the
rule that any offense remotely or indirectly affecting domestic harmony comes within the
exception is too broad. The better rule is that, when an offense directly attacks, or directly and
vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall
not be a witness against the other except in a criminal prosecution for a crime committee (by)
one against the other."

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation
between him and his wife Esperanza. His act, as embodied in the Information for arson filed
against him, eradicates all the major aspects of marital life such as trust, confidence, respect and
love by which virtues the conjugal relationship survives and flourishes.

As correctly observed by the Court of Appeals:

"The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez,
knowing fully well that his wife was there, and in fact with the alleged intent of injuring the
latter, is an act totally alien to the harmony and confidences of marital relation which the
disqualification primarily seeks to protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It underscored the fact that the marital and
domestic relations between her and the accused-husband have become so strained that there is no
more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a
case, identity is non-existent. In such a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which through their absence, merely leave a
void in the unhappy home. (People v. Castaeda, 271 SCRA 504). Thus, there is no longer any
reason to apply the Marital Disqualification Rule."

It should be stressed that as shown by the records, prior to the commission of the offense, the
relationship between petitioner and his wife was already strained. In fact, they were separated de
facto almost six months before the incident. Indeed, the evidence and facts presented reveal that
the preservation of the marriage between petitioner and Esperanza is no longer an interest the
State aims to protect.

At this point, it bears emphasis that the State, being interested in laying the truth before the
courts so that the guilty may be punished and the innocent exonerated, must have the right to
offer the direct testimony of Esperanza, even against the objection of the accused, because (as
stated by this Court in Francisco14), "it was the latter himself who gave rise to its necessity."
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC,
Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to testify against petitioner, her
husband, in Criminal Case No. 19933-MN. Costs against petitioner.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

People of the Philippines vs Castaneda

SECOND DIVISION

G.R. No. L-46306 February 27, 1979

PEOPLE OF THE PHILIPPINES, petitioner,


vs.
HON. MARIANO C. CASTAEDA, JR., as Judge of the Court of First Instance of
Pampanga, Branch III, and BENJAMIN F. MANALOTO, respondents.

Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner.

Moises Sevilla Ocampo for private petitioner.

Cicero J. Punzalan for respondent.

SANTOS, J.:

On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private respondent
Benjamin Manaloto was charged before the Court of First Instance of Pampanga, presided by respondent
Judge, Hon. Mariano C. Castaneda Jr., with the crime of Falsification of Public Document committed,
according to the Information, as follows:

That on or about the 19th day of May, 1975, in the Municipality of San Fernando,
province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court,
the above-named a BENJAMIN F. MANALOTO, with deliberate intent to commit
falsification, did then and there willfully, unlawfully and feloniously counterfeit, imitate and
forge the signature of his spouse Victoria M. Manaloto in a deed of sale executed by said
accused wherein he sold a house and lot belonging to the conjugal partnership of said
spouse in favor of Ponciano Lacsamana under Doc. No. 1957, Page No. 72, Book No.
LVII, Series of 1975, notarized by Notary Public Abraham Pa. Gorospe, thereby making it
appear that his spouse Victoria M. Manaloto gave her marital consent to said sale when
in fact and in truth she did not. 2

At the trial, the prosecution called the complaint-wife to the witness stand but the defense moved to
disqualify her as a witness, invoking Sec. 20, Rule 130 of the Revised Rules Of Court which provides:

SEC. 20. Disqualification by reason of interest or relationship The following persons


cannot testify as to matters in which they are interested, directly or indirectly as herein
enumerated.

xxx xxx xxx

(b) A husband can not be examined for or at his wife without her consent; nor a wife for
or against her husband without his consent, except in a civil case by one against the
other or in a criminal case for a crime committed by one against the other.

The prosecution opposed said motion to disquality on the ground that the case falls under the exception
to the rule, contending that it is a "criminal case for a crime committed by one against the other."
Notwithstanding such opposition, respondent Judge granted the motion, disqualifying Victoria Manaloto
from testifying for or against her husband, in an order dated March 31, 1977. A motion for reconsideration
petition was filed but was denied by respondent Judge in an order dated May 19, 1977.

Hence, this petition for certiorari file by the office of the Provincial Fiscal, on behalf of the People of the
Philippines, seeking set aside the aforesaid order of the respondent Judge and praying that a preliminary
injunction or a ternporary restraining order be issued by this Court enjoining said judge from further
proceeding with the trial of aforesaid Criminal Case No. 1011.

On June 20, 1977, this Court resolved (a) to issue a temporary restraining order, and (b) to require the
Solicitor General to appear as counsel for the petitioner. 3 The Office of the Solicitor General filed its
Notice of Appearance on June 27, 1977, 4 and its Memorandum in support of the Petition on August 30,
1977. 5 The respondents filed their Memorandum on September 5, 1977. 6 Whereupon, the case was
considered submitted for decision. 7

From the foregoing factual and procedural antecedents emerges the sole issues determinative of the
instant petition, to wit: Whether or not the criminal case for Falsification of Public Document filed against
herein private respondent Benjamin F. Manaloto who allegedly forged the signature of his wife, Victoria
M. Manaloto, in a deed of sale, thereby making it appear that the latter gave her marital consent to the
sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not
may be considered as a criminal case for a crime committed by a husband against his wife and,
therefore, an exception to the rule on marital disqualification.

We sustain petitioner's stand that the case is an exception to the marital disqualification rule, as a criminal
case for a crime committed by the accused-husband against the witness-wife.

1. The act complained of as constituting the crime of Falsification of Public Document is the forgery by the
accused of his wife's signature in a deed of sale, thereby making it appear therein that said wife
consented to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth
she did not. It must be noted that had the sale of the said house and lot, and the signing of the wife's
name by her husband in the deed of sale, been made with the consent of the wife, no crime could have
been charged against said husband Clearly, therefore, it is the husband's breach of his wife's confidence
which gave rise to the offense charged. And it is this same breach of trust which prompted the wife to
make the necessary complaint with the Office of the Provincial Fiscal which, accordingly, filed the
aforesaid criminal case with the Court of First Instance of Pampanga. To rule, therefore, that such
criminal case is not one for a crime committed by one spouse against the other is to advance a
conclusion which completely disregards the factual antecedents of the instant case.

2. This is not the first time that the issue of whether a specific offense may be classified as a crime
committed by one spouse against the other is presented to this Court for resolution. Thus, in the case of
Ordoo v. Daquigan, 8 this Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be
followed in resolving the issue, stating that:

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill v.
State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the is too narrow; and the
rule that any offense remotely or indirectly affecting domestic within the exception is too
broad. The better rule is that, WHEN AN OFFENSE DIRECTLY ATTACKS, OR
DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES WITHIN
THE EXCEPTION to the statute that one shall not be a witness against the other except
in a criminal prosecution for a crime committed (by) one against the other.

Applying the foregoing criterion in said case of Ordoo v. Daquigan this Court held that the rape
committed by the husband of the witness-wife against their daughter was a crime committed by the
husband against his wife. Although the victim of the crime committed by the accused in that can was not
his wife but their daughter, this Court, nevertheless, applied the exception for the reason that said criminal
act "Positively undermine(d) the connubial relationship. 9

With more reason must the exception apply to the instant case where the victim of the crime and the
person who stands to be directly prejudiced by the falsification is not a third person but the wife herself.
And it is undeniable that the act comp of had the effect of directly and vitally impairing the conjugal
relation. This is apparent not only in the act Of the wife in personally lodging her complaint with the Office
of the Provincial Fiscal, but also in her insistent efforts 10 in connection with the instant petition, which
seeks to set aside the order disqualified her from testifying against her husband. Taken collectively, the
actuations of the witness-wife underacore the fact that the martial and domestic relations between her
and the accused-husband have become so strained that there is no more harmony to be preserved said
nor peace and tranquility which may be disturbed. In such a case, as We have occasion to point out in
previous decisions, "identity of interests disappears and the consequent danger of perjury based on that
Identity is nonexistent. Likewise, in such a situation, the security and confidence of private life which the
law aims at protecting will be nothing but Ideals which, through their absence, merely leave a void in the
unhappy home. 11 Thus, there is no reason to apply the martial disqualification rule.

3. Finally, overriding considerations of public policy demand that the wife should not be disqualified from
testifying against her husband in the instant case. For, as aptly observed by the Solicitor General," (t)o
espouse the contrary view would spawn the dangerous precedent of a husband committing as many
falsifications against his wife as he could conjure, seeking shelter in the anti-marital privilege as a license
to injure and prejudice her in secret all with unabashed and complete impunity.

IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March 31, 1977, disqualifying
Victoria Manaloto from testifying for or against her husband, Benjamin Manaloto, in Criminal Case No.
1011, as well as the order dated May 19, 1977, denying the motion for reconsideration are hereby SET
ASIDE. The temporary restraining order issued by this Court is hereby lifted and the respondent Judge is
hereby ordered to proceed with the trial of the case, allowing Victoria Manaloto to testify against her
husband.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.
ii. Death or insanity (dead mans statute)

Razon vs Court of Appeals

THIRD DIVISION

G.R. No. 74306 March 16, 1992

ENRIQUE RAZON, petitioner,


vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity as Administrator of the Estate of the Deceased
JUAN T. CHUIDIAN, respondents.

G.R. No. 74315 March 16, 1992

VICENTE B. CHUIDIAN, petitioner,


vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON, INC., respondents.

GUTIERREZ, JR., J.:

The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E. Razon, Inc. covered by Stock
Certificate No. 003 issued on April 23, 1966 and registered under the name of Juan T. Chuidian in the books of the corporation. The then
Court of First Instance of Manila, now Regional Trial Court of Manila, declared that Enrique Razon, the petitioner in G.R. No. 74306 is the
owner of the said shares of stock. The then Intermediate Appellate Court, now Court of Appeals, however, reversed the trial court's decision
and ruled that Juan T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of stock.
Both parties filed separate motions for reconsideration. Enrique Razon wanted the appellate court's decision reversed and the trial court's
decision affirmed while Vicente Chuidian asked that all cash and stock dividends and all the pre-emptive rights accruing to the 1,500 shares
of stock be ordered delivered to him. The appellate court denied both motions. Hence, these petitions.

The relevant Antecedent facts are as follows:

In his complaint filed on June 29, 1971, and amended on November 16, 1971, Vicente B. Chuidian prayed that
defendants Enrique B. Razon, E. Razon, Inc., Geronimo Velasco, Francisco de Borja, Jose Francisco, Alfredo B. de
Leon, Jr., Gabriel Llamas and Luis M. de Razon be ordered to deliver certificates of stocks representing the
shareholdings of the deceased Juan T. Chuidian in the E. Razon, Inc. with a prayer for an order to restrain the
defendants from disposing of the said shares of stock, for a writ of preliminary attachment v. properties of defendants
having possession of shares of stock and for receivership of the properties of defendant corporation . . .

xxx xxx xxx

In their answer filed on June 18, 1973, defendants alleged that all the shares of stock in the name of stockholders of
record of the corporation were fully paid for by defendant, Razon; that said shares are subject to the agreement
between defendants and incorporators; that the shares of stock were actually owned and remained in the possession
of Razon. Appellees also alleged . . . that neither the late Juan T. Chuidian nor the appellant had paid any amount
whatsoever for the 1,500 shares of stock in question . . .

xxx xxx xxx

The evidence of the plaintiff shown that he is the administrator of the intestate estate of Juan Telesforo Chuidian in
Special Proceedings No. 71054, Court of First Instance of Manila.
Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding for the arrastre services in
South Harbor, Manila. The incorporators consisted of Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose
Tuason, Jr., Victor Lim, Jose F. Castro and Salvador Perez de Tagle.

On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of defendant corporation was issued in the name
of Juan T. Chuidian.

On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him, the plaintiff-appellant, were elected
as directors of E. Razon, Inc. Both of them actually served and were paid compensation as directors of E. Razon, Inc.

From the time the certificate of stock was issued on April 1966 up to April 1971, Enrique Razon had not questioned the
ownership by Juan T. Chuidian of the shares of stock in question and had not brought any action to have the certificate
of stock over the said shares cancelled.

The certificate of stock was in the possession of defendant Razon who refused to deliver said shares to the plaintiff,
until the same was surrendered by defendant Razon and deposited in a safety box in Philippine Bank of Commerce.

Defendants allege that after organizing the E. Razon, Inc., Enrique Razon distributed shares of stock previously placed
in the names of the withdrawing nominal incorporators to some friends including Juan T. Chuidian

Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the late Chuidian on April 23, 1986 was
personally delivered by Chuidian on July 1, 1966 to the Corporate Secretary of Attorney Silverio B. de Leon who was
himself an associate of the Chuidian Law Office (Exhs. C & 11). Since then, Enrique Razon was in possession of said
stock certificate even during the lifetime of the late Chuidian, from the time the late Chuidian delivered the said stock
certificate to defendant Razon until the time (sic) of defendant Razon. By agreement of the parties (sic) delivered it for
deposit with the bank under the joint custody of the parties as confirmed by the trial court in its order of August 7, 1971.

Thus, the 1,500 shares of stook under Stock Certificate No. 003 were delivered by the late Chuidian to Enrique
because it was the latter who paid for all the subscription on the shares of stock in the defendant corporation and the
understanding was that he (defendant Razon) was the owner of the said shares of stock and was to have possession
thereof until such time as he was paid therefor by the other nominal incorporators/stockholders (TSN., pp. 4, 8, 10, 24-
25, 25-26, 28-31, 31-32, 60, 66-68, July 22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o 74306, pp. 66-68)

In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its alleged misapplication of the dead man's statute rule
under Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead man's statute" rule is not applicable to the instant case.
Moreover, the private respondent, as plaintiff in the case did not object to his oral testimony regarding the oral agreement between him and
the deceased Juan T. Chuidian that the ownership of the shares of stock was actually vested in the petitioner unless the deceased opted to
pay the same; and that the petitioner was subjected to a rigid cross examination regarding such testimony.

Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on Evidence) States:

Sec. 20. Disqualification by reason of interest or relationship The following persons cannot testify as to matters in
which they are interested directly or indirectly, as herein enumerated.

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact accruing before the death of such deceased person or before such person became of unsound mind."
(Emphasis supplied)

xxx xxx xxx

The purpose of the rule has been explained by this Court in this wise:

The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were
allowed to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely
impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their
properties or rights to false or unscrupulous claims or demands. The purpose of the law is to "guard against the
temptation to give false testimony in regard to the transaction in question on the part of the surviving party." (Tongco v.
Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Co Cho, et al., 622 [1955])

The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator or its representative of an
estate upon a claim against the estate of the deceased person. (See Tongco v. Vianzon, 50 Phil. 698 [1927])
In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the affect that the late Juan
Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant agreed in
the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan
Chuidian opted to pay the same which never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to
recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian.

It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case was not filed against the
administrator of the estate, nor was it filed upon claims against the estate.

Furthermore, the records show that the private respondent never objected to the testimony of the petitioner as regards the true nature of his
transaction with the late elder Chuidian. The petitioner's testimony was subject to cross-examination by the private respondent's counsel.
Hence, granting that the petitioner's testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of Court, the private
respondent is deemed to have waived the rule. We ruled in the case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):

It is also settled that the court cannot disregard evidence which would ordinarily be incompetent under the rules but has
been rendered admissible by the failure of a party to object thereto. Thus:

. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of improper questions
that may be put to him while on the stand is a matter resting in the discretion of the litigant. He may assert his right by
timely objection or he may waive it, expressly or by silence. In any case the option rests with him. Once admitted, the
testimony is in the case for what it is worth and the judge has no power to disregard it for the sole reason that it could
have been excluded, if it had been objected to, nor to strike it out on its own motion (Emphasis supplied). (Marella v.
Reyes, 12 Phil. 1.)

The issue as to whether or not the petitioner's testimony is admissible having been settled, we now proceed to discuss the fundamental issue
on the ownership of the 1,500 shares of stock in E. Razon, Inc.

E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose of participating in the bidding for the arrastre services in
South Harbor, Manila. The incorporators were Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F.
Castro and Salvador Perez de Tagle. The business, however, did not start operations until 1966. According to the petitioner, some of the
incorporators withdrew from the said corporation. The petitioner then distributed the stocks previously placed in the names of the withdrawing
nominal incorporators to some friends, among them the late Juan T. Chuidian to whom he gave 1,500 shares of stock. The shares of stock
were registered in the name of Chuidian only as nominal stockholder and with the agreement that the said shares of stock were owned and
held by the petitioner but Chuidian was given the option to buy the same. In view of this arrangement, Chuidian in 1966 delivered to the
petitioner the stock certificate covering the 1,500 shares of stock of E. Razon, Inc. Since then, the Petitioner had in his possession the
certificate of stock until the time, he delivered it for deposit with the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.

The petitioner maintains that his aforesaid oral testimony as regards the true nature of his agreement with the late Juan Chuidian on the
1,500 shares of stock of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500 shares of stock.

The petitioner's contention is not correct.

In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990]) we ruled:

. . . For an effective, transfer of shares of stock the mode and manner of transfer as prescribed by law must be followed
(Navea v. Peers Marketing Corp., 74 SCRA 65). As provided under Section 3 of Batas Pambansa Bilang, 68 otherwise
known as the Corporation Code of the Philippines, shares of stock may be transferred by delivery to the transferee of
the certificate properly indorsed. Title may be vested in the transferee by the delivery of the duly indorsed certificate of
stock (18 C.J.S. 928, cited in Rivera v. Florendo, 144 SCRA 643). However, no transfer shall be valid, except as
between the parties until the transfer is properly recorded in the books of the corporation (Sec. 63, Corporation Code of
the Philippines; Section 35 of the Corporation Law)

In the instant case, there is no dispute that the questioned 1,500 shares of stock of E. Razon, Inc. are in the name of the late Juan Chuidian
in the books of the corporation. Moreover, the records show that during his lifetime Chuidian was ellected member of the Board of Directors
of the corporation which clearly shows that he was a stockholder of the corporation. (See Section 30, Corporation Code) From the point of
view of the corporation, therefore, Chuidian was the owner of the 1,500 shares of stock. In such a case, the petitioner who claims ownership
over the questioned shares of stock must show that the same were transferred to him by proving that all the requirements for the effective
transfer of shares of stock in accordance with the corporation's by laws, if any, were followed (See Nava v. Peers Marketing Corporation, 74
SCRA 65 [1976]) or in accordance with the provisions of law.

The petitioner failed in both instances. The petitioner did not present any by-laws which could show that the 1,500 shares of stock were
effectively transferred to him. In the absence of the corporation's by-laws or rules governing effective transfer of shares of stock, the
provisions of the Corporation Law are made applicable to the instant case.

The law is clear that in order for a transfer of stock certificate to be effective, the certificate must be properly indorsed and that title to such
certificate of stock is vested in the transferee by the delivery of the duly indorsed certificate of stock. (Section 35, Corporation Code) Since
the certificate of stock covering the questioned 1,500 shares of stock registered in the name of the late Juan Chuidian was never indorsed to
the petitioner, the inevitable conclusion is that the questioned shares of stock belong to Chuidian. The petitioner's asseveration that he did
not require an indorsement of the certificate of stock in view of his intimate friendship with the late Juan Chuidian can not overcome the
failure to follow the procedure required by law or the proper conduct of business even among friends. To reiterate, indorsement of the
certificate of stock is a mandatory requirement of law for an effective transfer of a certificate of stock.

Moreover, the preponderance of evidence supports the appellate court's factual findings that the shares of stock were given to Juan T.
Chuidian for value. Juan T. Chuidian was the legal counsel who handled the legal affairs of the corporation. We give credence to the
testimony of the private respondent that the shares of stock were given to Juan T. Chuidian in payment of his legal services to the
corporation. Petitioner Razon failed to overcome this testimony.

In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate court's decision declaring his deceased father Juan T. Chuidian
as owner of the 1,500 shares of stock of E. Razon, Inc. should have included all cash and stock dividends and all the pre-emptive rights
accruing to the said 1,500 shares of stock.

The petition is impressed with merit.

The cash and stock dividends and all the pre-emptive rights are all incidents of stock ownership.

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

. . . [F]irst, to have a certificate or other evidence of his status as stockholder issued to him; second, to vote at meetings
of the corporation; third, to receive his proportionate share of the profits of the corporation; and lastly, to participate
proportionately in the distribution of the corporate assets upon the dissolution or winding up. (Purdy's Beach on Private
Corporations, sec. 554) (Pascual v. Del Saz Orozco, 19 Phil. 82, 87)

WHEREFORE, judgment is rendered as follows:

a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and resolution of the then Intermediate Appellate Court, now the
Court of Appeals, are AFFIRMED. Costs against the petitioner.

b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution insofar as it denied the petitioner's motion to clarify the
dispositive portion of the decision of the then Intermediate Appellate Court, now Court of Appeals is REVERSED and SET ASIDE. The
decision of the appellate court is MODIFIED in that all cash and stock dividends as, well as all pre-emptive rights that have accrued and
attached to the 1,500 shares in E. Razon, Inc., since 1966 are declared to belong to the estate of Juan T. Chuidian.

SO ORDERED.

Bidin, Davide, Jr. and Romero, JJ., concur.

Feliciano, J., is on leave.

Sunga Chan Chua

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 143340 August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,


vs.

LAMBERTO T. CHUA, respondent.

DECISION

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of the
Decision[1] of the Court of Appeals dated January 31, 2000 in the case entitled Lamberto T.
Chua vs. Lilibeth Sunga Chan and Cecilia Sunga and of the Resolution dated May 23, 2000
denying the motion for reconsideration of herein petitioners Lilibeth Sunga Chan and Cecilia
Sunga (hereafter collectively referred to as petitioners).

The pertinent facts of this case are as follows:

On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth
Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia),
daughter and wife, respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for
Winding Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and
Damages with Writ of Preliminary Attachment with the Regional Trial Court, Branch 11,
Sindangan, Zamboanga del Norte.

Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the
distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience,
respondent and Jacinto allegedly agreed to register the business name of their partnership,
SHELLITE GAS APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a
sole proprietorship. Respondent allegedly delivered his initial capital contribution of
P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his counterpart
contribution, with the intention that the profits would be equally divided between them. The
partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a
sister of the wife of respondent, Erlinda Sy. As compensation, Jacinto would receive a
managers fee or remuneration of 10% of the gross profit and Josephine would receive 10% of
the net profits, in addition to her wages and other remuneration from the business.

Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation
went quite well and was profitable. Respondent claimed that he could attest to the success of
their business because of the volume of orders and deliveries of filled Shellane cylinder tanks
supplied by Pilipinas Shell Petroleum Corporation. While Jacinto furnished respondent with the
merchandise inventories, balance sheets and net worth of Shellite from 1977 to 1989, respondent
however suspected that the amount indicated in these documents were understated and
undervalued by Jacinto and Josephine for their own selfish reasons and for tax avoidance.
Upon Jacintos death in the later part of 1989, his surviving wife, petitioner Cecilia and
particularly his daughter, petitioner Lilibeth, took over the operations, control, custody,
disposition and management of Shellite without respondents consent.

Despite respondents repeated demands upon petitioners for accounting, inventory, appraisal,
winding up and restitution of his net shares in the partnership, petitioners failed to
comply. Petitioner Lilibeth allegedly continued the operations of Shellite, converting to her own
use and advantage its properties.

On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out of alibis and reasons
to evade respondents demands, she disbursed out of the partnership funds the amount of
P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed
respondent that the P200,000.00 represented partial payment of the latters share in the
partnership, with a promise that the former would make the complete inventory and winding up
of the properties of the business establishment. Despite such commitment, petitioners allegedly
failed to comply with their duty to account, and continued to benefit from the assets and income
of Shellite to the damage and prejudice of respondent.

On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities
and Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zambaonga del
Norte had jurisdiction over the action. Respondent opposed the motion to dismiss.

On January 12, 1993, the trial court finding the complaint sufficient in form and substance
denied the motion to dismiss.

On January 30, 1993, petitioners filed their Answer with Compulsory Counterclaims, contending
that they are not liable for partnership shares, unreceived income/profits, interests, damages and
attorneys fees, that respondent does not have a cause of action against them, and that the trial
court has no jurisdiction over the nature of the action, the SEC being the agency that has original
and exclusive jurisdiction over the case. As counterclaim, petitioner sought attorneys fees and
expenses of litigation.

On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the
claim for winding up of partnership affairs, accounting and recovery of shares in partnership
affairs, accounting and recovery of shares in partnership assets /properties should be dismissed
and prosecuted against the estate of deceased Jacinto in a probate or intestate proceeding.

On August 16, 1993, the trial court denied the second motion to dismiss for lack of merit.

On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus
with the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the
motion to dismiss.

On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial
Conference.
On December 13, 1993, the trial court granted the motion to suspend pre-trial conference.

On November 15, 1994, the Court of Appeals denied the petition for lack of merit.

On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner,
as petitioners failed to show that a reversible error was committed by the appellate court.[2]

On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was
remanded to the trial court on April 26, 1995.

On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of
the case on January 17, 1996. Respondent presented his evidence while petitioners were
considered to have waived their right to present evidence for their failure to attend the scheduled
date for reception of evidence despite notice.

On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive
portion of the Decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants,
as follows:

(1) DIRECTING them to render an accounting in acceptable form under accounting procedures
and standards of the properties, assets, income and profits of the Shellite Gas Appliance Center
since the time of death of Jacinto L. Sunga, from whom they continued the business operations
including all businesses derived from the Shellite Gas Appliance Center; submit an inventory,
and appraisal of all these properties, assets, income, profits, etc. to the Court and to plaintiff for
approval or disapproval;

(2) ORDERING them to return and restitute to the partnership any and all properties, assets,
income and profits they misapplied and converted to their own use and advantage that legally
pertain to the plaintiff and account for the properties mentioned in pars. A and B on pages 4-5 of
this petition as basis;

(3) DIRECTING them to restitute and pay to the plaintiff shares and interest of the plaintiff in
the partnership of the listed properties, assets and good will (sic) in schedules A, B and C, on
pages 4-5 of the petition;

(4) ORDERING them to pay the plaintiff earned but unreceived income and profits from the
partnership from 1988 to may 30, 1992, when the plaintiff learned of the closure of the store the
sum of P35,000.00 per month, with legal rate of interest until fully paid;

(5) ORDERING them to wind up the affairs of the partnership and terminate its business
activities pursuant to law, after delivering to the plaintiff all the interest, shares, participation
and equity in the partnership, or the value thereof in money or moneys worth, if the properties
are not physically divisible;
(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in bad faith and
hold them liable to the plaintiff the sum of P50,000.00 as moral and exemplary damages; and,

(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorneys (sic) and
P25,00.00 as litigation expenses.

NO special pronouncements as to COSTS.

SO ORDERED.[3]

On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case
to the Court of Appeals.

On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the
Decision reads:

WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in all
respects.[4]

On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner.

Hence, this petition wherein petitioner relies upon the following grounds:

1. The Court of Appeals erred in making a legal conclusion that there existed a partnership
between respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the latters invitation
and offer and that upon his death the partnership assets and business were taken over by
petitioners.

2. The Court of Appeals erred in making the legal conclusion that laches and/or prescription did
not apply in the instant case.

3. The Court of Appeals erred in making the legal conclusion that there was competent and
credible evidence to warrant the finding of a partnership, and assuming arguendo that indeed
there was a partnership, the finding of highly exaggerated amounts or values in the partnership
assets and profits.[5]

Petitioners question the correctness of the finding of the trial court and the Court of Appeals that
a partnership existed between respondent and Jacinto from 1977 until Jacintos death. In the
absence of any written document to show such partnership between respondent and Jacinto,
petitioners argue that these courts were proscribed from hearing the testimonies of respondent
and his witness, Josephine, to prove the alleged partnership three years after Jacintos death. To
support this argument, petitioners invoke the Dead Mans Statute or Survivorship Rule
under Section 23, Rule 130 of the Rules of Court that provides:

SEC. 23. Disqualification by reason of death or insanity of adverse party. Parties or


assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased person, or against
such person of unsound mind, cannot testify as to any matter of fact occurring before the death of
such deceased person or before such person became of unsound mind.

Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego,
Josephine, should not have been admitted to prove certain claims against a deceased person
(Jacinto), now represented by petitioners.

We are not persuaded.

A partnership may be constituted in any form, except where immovable property or real rights
are contributed thereto, in which case a public instrument shall be necessary.[6] Hence, based on
the intention of the parties, as gathered from the facts and ascertained from their language and
conduct, a verbal contract of partnership may arise.[7] The essential points that must be proven to
show that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2)
a joint interest in the profits.[8] Understandably so, in view of the absence of a written contract of
partnership between respondent and Jacinto, respondent resorted to the introduction of
documentary and testimonial evidence to prove said partnership. The crucial issue to settle then
is whether or not the Dead Mans Statute applies to this case so as to render inadmissible
respondents testimony and that of his witness, Josephine.

The Dead Mans Statute provides that if one party to the alleged transaction is precluded from
testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the
undue advantage of giving his own uncontradicted and unexplained account of the
transaction.[9] But before this rule can be successfully invoked to bar the introduction of
testimonial evidence, it is necessary that:

1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is
prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person


or a person of unsound mind;

3. The subject-matter of the action is a claim or demand against the estate of such deceased
person or against person of unsound mind;

4. His testimony refers to any matter of fact which occurred before the death of such deceased
person or before such person became of unsound mind.[10]

Two reasons forestall the application of the Dead Mans Statute to this case.

First, petitioners filed a compulsory counterclaim[11] against respondent in their answer before
the trial court, and with the filing of their counterclaim, petitioners themselves effectively
removed this case from the ambit of the Dead Mans Statute.[12] Well entrenched is the rule
that when it is the executor or administrator or representatives of the estate that sets up the
counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the
deceased to defeat the counterclaim.[13] Moreover, as defendant in the counterclaim, respondent
is not disqualified from testifying as to matters of fact occurring before the death of the deceased,
said action not having been brought against but by the estate or representatives of the
deceased.[14]

Second, the testimony of Josephine is not covered by the Dead Mans Statute for the simple
reason that she is not a party or assignor of a party to a case or persons in whose behalf a case is
prosecuted. Records show that respondent offered the testimony of Josephine to establish the
existence of the partnership between respondent and Jacinto. Petitioners insistence that
Josephine is the alter ego of respondent does not make her an assignor because the term
assignor of a party means assignor of a cause of action which has arisen, and not the assignor
of a right assigned before any cause of action has arisen.[15] Plainly then, Josephine is merely a
witness of respondent, the latter being the party plaintiff.

We are not convinced by petitioners allegation that Josephines testimony lacks probative value
because she was allegedly coerced by respondent, her brother-in-law, to testify in his favor.
Josephine merely declared in court that she was requested by respondent to testify and that if she
were not requested to do so she would not have testified. We fail to see how we can conclude
from this candid admission that Josephines testimony is involuntary when she did not in any
way categorically say that she was forced to be a witness of respondent. Also, the fact that
Josephine is the sister of the wife of respondent does not diminish the value of her testimony
since relationship per se, without more, does not affect the credibility of witnesses.[16]

Petitioners reliance alone on the Dead Mans Statute to defeat respondents claim cannot
prevail over the factual findings of the trial court and the Court of Appeals that a partnership was
established between respondent and Jacinto. Based not only on the testimonial evidence, but the
documentary evidence as well, the trial court and the Court of Appeals considered the evidence
for respondent as sufficient to prove the formation of a partnership, albeit an informal one.

Notably, petitioners did not present any evidence in their favor during trial. By the weight of
judicial precedents, a factual matter like the finding of the existence of a partnership between
respondent and Jacinto cannot be inquired into by this Court on review.[17] This Court can no
longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh
them to ascertain if the trial court and the appellate court were correct in according superior
credit to this or that piece of evidence of one party or the other.[18] It must be also pointed out
that petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot
now turn to this Court to question the admissibility and authenticity of the documentary evidence
of respondent when petitioners failed to object to the admissibility of the evidence at the time
that such evidence was offered.[19]

With regard to petitioners insistence that laches and/or prescription should have extinguished
respondents claim, we agree with the trial court and the Court of Appeals that the action for
accounting filed by respondent three (3) years after Jacintos death was well within the
prescribed period. The Civil Code provides that an action to enforce an oral contract prescribes
in six (6) years[20] while the right to demand an accounting for a partners interest as against the
person continuing the business accrues at the date of dissolution, in the absence of any contrary
agreement.[21] Considering that the death of a partner results in the dissolution of the
partnership[22], in this case, it was after Jacintos death that respondent as the surviving partner
had the right to an account of his interest as against petitioners. It bears stressing that while
Jacintos death dissolved the partnership, the dissolution did not immediately terminate the
partnership. The Civil Code[23] expressly provides that upon dissolution, the partnership
continues and its legal personality is retained until the complete winding up of its business,
culminating in its termination.[24]

In a desperate bid to cast doubt on the validity of the oral partnership between respondent and
Jacinto, petitioners maintain that said partnership that had an initial capital of P200,000.00
should have been registered with the Securities and Exchange Commission (SEC) since
registration is mandated by the Civil Code. True, Article 1772 of the Civil Code requires that
partnerships with a capital of P3,000.00 or more must register with the SEC, however, this
registration requirement is not mandatory. Article 1768 of the Civil Code[25]explicitly provides
that the partnership retains its juridical personality even if it fails to register. The failure to
register the contract of partnership does not invalidate the same as among the partners, so long as
the contract has the essential requisites, because the main purpose of registration is to give notice
to third parties, and it can be assumed that the members themselves knew of the contents of their
contract.[26] In the case at bar, non-compliance with this directory provision of the law will not
invalidate the partnership considering that the totality of the evidence proves that respondent and
Jacinto indeed forged the partnership in question.

WHEREFORE, in view of the foregoing, the petition is DENIED and the appealed decision is
AFFIRMED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

Bordalba vs Court of Appeals

FIRST DIVISION

[G.R. No. 112443. January 25, 2002]

TERESITA P. BORDALBA, petitioner, vs. COURT OF APPEALS, HEIRS OF NICANOR


JAYME, namely, CANDIDA FLORES, EMANNUEL JAYME, DINA JAYME DEJORAS,
EVELIA JAYME, and GESILA JAYME; AND HEIRS OF ASUNCION JAYME-BACLAY,
namely, ANGELO JAYME-BACLAY, CARMEN JAYME-DACLAN and ELNORA JAYME
BACLAY, respondents.

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking to set aside the October
20, 1992 Decision of the Court of Appealsi[1] in CA-G.R. CV No. 27419, which affirmed with
modification the Decisionii[2] of the Regional Trial Court of Mandaue, Branch 28, in Civil Case
No. MAN-386.

The instant controversy stemmed from Lot No. 1242 (Lot No. 799-C) with an area of 1,853
square meters and located at Barrio Looc, Mandaue City. The subject lot is part of a parcel of
land situated on the corner of Mabini and Plaridel Streets in Mandaue City, and originally owned
by the late spouses Carmeno Jayme and Margarita Espina de Jayme. In 1947, an extra-judicial
partition,iii[3] written in the Spanish language was executed, describing said parcel of land as

2. otra parcela de terreno urbano en el barrio de Look, Mandawe, Cebu, que linda al N. con
la Calle Mabini y propiodades de F. Jayme; al E. linda con propiodades de Fernando Antigua; al
S. linda con propiodades de Lucas y Victoriano Jayme, y al O. linda con la Calle Plaridel. La
propiodad descrita esta avaluada, con todas sus mejoras, en la cantidad de MIL Y CINCUENTA
PESOS ------------------------------------------------ P1,050.00.iv[4]

and disposing, inter alia, the same parcel of land as follows:

1) 1/3 in favor of - (a) their grandchild Nicanor Jayme, the deceased spouse of private
respondent Candida Flores and the father of private respondents Emmanuel, Dina, Evelia and
Gesila, all surnamed Jayme; and (b) their grandchild Asuncion Jayme-Baclay, whose heirs are
private respondents Angelo Baclay, Elnora Baclay and Carmen Jayme-Daclan;

2) 1/3 to their daughter Elena Jayme Vda. de Perez, mother of petitioner Teresita P.
Bordalba; and

3) 1/3 to an unidentified party.

Built on the land adjudicated to the heirs of the spouses is Nicanor Jaymes house, which his
family occupied since 1945.

Sometime in July 1964, Elena Jayme Vda. de Perez, petitioners mother, filed with the Regional
Trial Court of Cebu, Branch IV, an amended application for the registrationv[5] of the lot
described with the following boundaries:

N - Fruelana Jayme & Road

S - Felicitas de Latonio

E - Agustin de Jayme

W - Porfirio Jayme, Lot No. 1 and Vivencio Abellana


Elena Jayme Vda. de Perez alleged that the lot sought to be registered was originally a part of a
land owned by her late parents, the spouses Carmeno Jayme and Margarita Espina de Jayme; and
that 1/3 of said land was adjudicated to her in an extra-judicial partition. She further stated that a
portion of the lot for which title is applied for is occupied by Nicanor Jayme with her permission.

Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed their oppositionvi[6] contending
that said application included the 1/3 portion inherited by them in the 1947 extra-judicial
partition. The case was, however, dismissed for lack of interest of the parties.

Subsequently, petitioner filed with the Bureau of Lands of Cebu City an applicationvii[7] dated
January 10, 1979, seeking the issuance of a Free Patent over the same lot subject of the aborted
application of her mother, Elena Jayme, now known as Lot No. 1242 (799-C), described as
follows:

North: Froilan Jayme and Road


East: Agustin Jayme
South: Alfredo Alivio and Spouses Hilario Gandecila
West: Hilario Gandecila Porferio Jayme and Heirs of Vevencio Abellanosaviii[8]

On April 16, 1980, petitioner was successfully granted Free Patent No. (VII-I) 11421 and
Original Certificate of Title No. 0-571 (FP) over said lot.ix[9] Thereafter, petitioner caused the
subdivision and titling of Lot No. 1242 (799-C), into 6 lots,x[10] as well as the disposition of two
parcels thereof, thus:

1) Lot No. 1242-A with an area of 581 square meters covered by Transfer Certificate of
Title No. 22771 (FP) in the name of spouses Genaro U. Cabahug and Rita Capala, to whom
petitioner sold said lot;

2) Lot No. 1242-B with an area of 420 square meters covered by TCT No. 22772 in the
name of Teresita P. Bordalba, and which the latter mortgaged with the Rural Bank of Mandaue;

3) Lot No. 1242-C with an area of 210 square meters covered by TCT 22773 in the name of
Teresita P. Bordalba;

4) Lot No. 1242-D with an area of 210 square meters covered by TCT 22774 in the name of
Teresita Bordalba;

5) Lot No. 1242-E with an area of 216 square meters covered by TCT 22775 in the name of
Teresita P. Bordalba;

6) Lot No. 1242-F with an area of 216 square meters and covered by TCT No. 22776 in the
name of Teresita P. Bordalba.

Upon learning of the issuance in favor of petitioner of the aforesaid Free Patent and Original
Certificate of Title over Lot No. 1242, as well as the conveyances made by petitioner involving
the lot subject of the controversy, private respondents filed with the Regional Trial Court of
Mandaue City, Branch 28, the instant complaint against petitioner Teresita Bordalba, spouses
Genaro U. Cabahug, and Rita Capala, Rural Bank of Mandaue and the Director of the Bureau of
Lands.

In the said complaint, private respondents prayed that Free Patent No. (VII-I) 11421 and OCT
No. 0-571 (FP), as well as TCT Nos. 22771-22776 be declared void and ordered cancelled.
Private respondents also prayed that they be adjudged owners of Lot No. 1242 (799-C), and that
spouses Genaro V. Cabahug and Rita Capala as well as the Rural Bank of Mandaue be declared
buyers and mortgagee in bad faith, respectively. In addition, they asked the court to award them
actual, compensatory, and moral damages plus attorneys fees in the amount of P20,000.00.

Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was acquired by her through
purchase from her mother,xi[11] who was in possession of the lot in the concept of an owner since
1947. In her answer, petitioner traced her mothers ownership of the lot partly from the 1947 deed
of extra-judicial partition presented by private respondents,xii[12] and claimed that Nicanor Jayme,
and Candida Flores occupied a portion of Lot No. 1242 (799-C) by mere tolerance of her mother.
On cross-examination, petitioner admitted that the properties of the late Carmeno Jayme and
Margarita Espina de Jayme were partitioned by their heirs in 1947, but claimed that she was not
aware of the existence of said Deed of Extra-judicial Partition. She, however, identified one of
the signatures in the said Deed to be the signature of her mother.xiii[13]

On May 28, 1990, the trial court, finding that fraud was employed by petitioner in obtaining Free
Patent No. (VII-I) 11421 and OCT No. 0-571 (FP), declared said patent and title void and
ordered its cancellation. However, it declared that spouses Genaro U. Cabahug and Rita Capala
as well as the Rural Bank of Mandaue are purchasers and mortgagee in good faith, respectively;
and consequently upheld as valid the sale of Lot No. 1242-A covered by Transfer Certificate of
Title No. 22771 (FP) to spouses Genaro U. Cabahug and Rita Capala, and the mortgage of Lot
No. 1242-B covered by TCT No. 22772 in favor of the Rural Bank of Mandaue. The dispositive
portion of the decision reads:

WHEREFORE, foregoing premises considered, Decision is hereby rendered in favor of the


plaintiffs by:

1) declaring Free Patent No. (VII-I) 11421 as well as the Original Certificate of Title No. 0-
57 (FP) and all subsequent certificates of title as a result of the subdivision of Lot No. 1242
except TCT NO. 22771 (FP) as null and void and ordering the Register of Deeds of Mandaue
City to cancel them;

2) declaring spouses defendants Genaro U. Cabahug and Rita Capala as buyers in good faith
and are the legal and rightful owners of Lot No. 1242-A as described in TCT No. 22771 (FP);

3) declaring the Rural Bank of Mandaue, Inc. as mortgagee in good faith and the mortgage
lien in its favor be carried over to and be annotated in the new certificate of title to be issued
under the names of the plaintiffs;
4) declaring the plaintiffs as the legal and rightful owners of Lot 1242 and ordering the
issuance of the certificate of title in their names;

5) dismissing the claims of the defendant spouses Cabahug and Capala and the defendant
Rural Bank of Mandaue, Inc. for lack of merit;

6) ordering the defendant Teresita Bordalba to pay plaintiffs the following amounts:

(a) P5,000.00 as actual and litigation expenses;


(b) P20,000.00 as attorneys fees, and,

7) ordering defendant Bordalba to pay the costs.

SO ORDERED.xiv[14]

Both petitioner Teresita Bordalba and private respondents appealed to the Court of Appeals,
which affirmed with modification the decision of the trial court. It ruled that since private
respondents are entitled only to 1/3 portion of Lot No. 1242 (799-C), petitioner should be
ordered to reconvey 1/3 of Lot No. 1242 (799-C) to private respondents. The decretal portion of
the respondent court's decision states:

WHEREFORE, the challenged decision is MODIFIED to order the reconveyance of one-third of


the subject land in favor of the plaintiff-appellees in lieu of the cancellation of the Certificates of
Title issued and their declaration as the owners of Lot No. 1242 in its entirety. The rest is
AFFIRMED in toto.

SO ORDERED.xv[15]

Thus, petitioner filed the instant petition, assailing the decision of the Court of Appeals.
Petitioner contends that the testimonies given by the witnesses for private respondents which
touched on matters occurring prior to the death of her mother should not have been admitted by
the trial court, as the same violated the dead mans statute. Likewise, petitioner questions the right
of private respondents to inherit from the late Nicanor Jayme and Asuncion Jayme-Baclay, as
well as the identity between the disputed lot and the parcel of land adjudicated in the Deed of
Extra-judicial Partition.

The contentions are without merit. It is doctrinal that findings of facts of the Court of Appeals
upholding those of the trial court are binding upon this Court. While there are exceptions to this
rule, petitioner has not convinced us that this case falls under one of them.xvi[16]

The Court sees no reason to deviate from the findings of the trial court that petitioner resorted to
fraud and misrepresentation in obtaining a free patent and title over the lot under scrutiny. The
Court of Appeals correctly pointed out that misrepresentation tainted petitioners application,
insofar as her declaration that the land applied for was not occupied or claimed by any other
person. Her declaration is belied by the extra-judicial partition which she acknowledged, her
mothers aborted attempt to have the lot registered, private respondents predecessors-in-interests
opposition thereto, and by the occupancy of a portion of the said lot by Nicanor Jayme and his
family since 1945.

It is a settled rule that the Land Registration Act protects only holders of title in good faith, and
does not permit its provision to be used as a shield for the commission of fraud, or as a means to
enrich oneself at the expense of others.xvii[17]

As to the alleged violation of the dead mans statute,xviii[18] suffice it to state that said rule finds no
application in the present case. The dead mans statute does not operate to close the mouth of a
witness as to any matter of fact coming to his knowledge in any other way than through personal
dealings with the deceased person, or communication made by the deceased to the witness.xix[19]

Since the claim of private respondents and the testimony of their witnesses in the present case is
based, inter alia, on the 1947 Deed of Extra-judicial Partition and other documents, and not on
dealings and communications with the deceased, the questioned testimonies were properly
admitted by the trial court.

Likewise untenable is the claim of petitioner that private respondents are not legal heirs of
Nicanor Jayme and Asuncion Jayme-Baclay. Other than their bare allegations to dispute their
heirship, no hard evidence was presented by them to substantiate their allegations. Besides, in
order that an heir may assert his right to the property of a deceased, no previous judicial
declaration of heirship is necessary.xx[20]

Anent the issue of identity, the disparity in the boundaries of Lot No. 1242 (799-C) vis--vis the
boundaries of the lot referred to in the 1947 Deed of Extra-judicial Partition can be explained by
the fact that Lot No. 1242 (799-C) is only a portion of the entire parcel of land described in the
Deed, a 1/3 pro-indiviso portion of which was adjudicated each to, first, petitioners mother,
second, to the predecessors-in-interest of private respondents, and third, to an unidentified party.
Logically therefore, their boundaries will not be similar. At any rate, the records show that the
parcel of land adjudicated to the predecessors-in-interest of the parties herein was the lot found
on the corner of Plaridel and Mabini Streets in Looc, Mandaue City. As admitted further by both
parties, Lot No. 1242 (799-C) was part of the land allotted to their predecessors-in-interest in the
1947 Deed of Extra-judicial Partition. Moreover, petitioners mother acknowledged in her
application for registration of Lot No. 1242 that the Deed of Extra-judicial Partition was the
source of her claim over the lot sought to be registered. She further admitted that the lot now
known as Lot No. 1242 (799-C) was part of the parcel of land inherited by her and her co-heirs,
to the extent of 1/3 share each. Under Section 31, Rule 130, of the Revised Rules on Evidence,
where one derives title to property from another, the act, declaration, or omission of the latter,
while holding the title, in relation to the property, is evidence against the former.

Considering that Lot No.1242 (799-C) is part of the parcel of land over which private
respondents predecessors-in-interest is entitled to 1/3 pro-indiviso share, which was disregarded
by petitioner when she secured a Free Patent and Original Certificate of Title in her name, to the
exclusion of private respondents predecessors-in-interest, the trial court and the Court of
Appeals, therefore, did not err in upholding the right of private respondents as co-owners, and
ordering the petitioner to reconvey 1/3 of the lot in question to them.
Notwithstanding the foregoing, however, the Court is unable to determine what part of Lot No.
1242 (799-C) is within the boundaries of the parcel of land inherited in the 1947 Deed of Extra-
judicial Partition by the predecessors-in-interest of the parties herein. This is so because private
respondents did not show the extent of the said land mentioned in the 1947 Deed of Extra-
judicial Partition in relation to Lot No. 1242 (799-C). While they presented the boundaries of the
parcel of land adjudicated in the Deed, to wit:

North: Calle Mabini y propiodades de F. Jayme


East: Propiodades de Fernando Antigua
South: Propiodades de Lucas y Victoriano Jayme
West: Calle Plaridel

they did not, however, show where these boundaries are found in relation to the boundaries of
Lot No. 1242 (799-C). Absent a fixed boundary of the parcel of land adjudicated in the Deed,
which they claim Lot No. 1242 (799-C) is a part of, the Court cannot determine the extent to
which the lot now known as Lot No. 1242 (799-C) is included. Admittedly, the north boundary
of Lot No. 1242 (799-C) (Property of Froilan Jaime and Mabini Street) is similar to the north
boundary of the land mentioned in the Deed. With only one reference point, however, the south,
east and west boundaries of Lot No. 1242 (799-C) cannot be established with certainty to be
within the parcel of land described in the Deed of Extra-judicial Partition.

In Beo v. Court of Appeals,xxi[21] the Court held that in order that an action for recovery of
possession may prosper, it is indispensable that he who brings the action must fully prove not
only his ownership but also the identity of the property claimed by describing the location, area
and boundaries thereof. So that when the record does not show that the land subject matter of the
action has been exactly determined, the action cannot prosper, inasmuch as the plaintiff's
ownership rights in the land claimed do not appear satisfactorily and conclusively proven at the
trial.

In the present case, while it is true that private respondents were not able to show the extent of
their 1/3 pro indiviso right over Lot No. 1242 (799-C), they have nevertheless established their
claim over the said lot. Hence, in line with our ruling in the case of Laluan v. Malpaya,xxii[22] the
prudent recourse would be to remand the case to the lower court for a new trial.

WHEREFORE, in view of all the foregoing, the October 20, 1992 Decision of the Court of
Appeals in CA-G.R. CV No. 27419, and the May 28, 1990 Decision of the Regional Trial Court
of Mandaue City, Branch 28, in Civil Case No. MAN-386, insofar as it relates to the recognition
of the 1/3 share of private respondents over Lot No. 1242 (799-C) is AFFIRMED. The case is
remanded to the trial court in order to determine what part of Lot No. 1242 (799-C) is included
in the parcel of land adjudicated in the 1947 Deed of Extrajudicial Partition to the predecessors-
in-interest of the parties herein.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
iii. Privileged Communication

Chan vs Chan

THIRD DIVISION

G.R. No. 179786 July 24, 2013

JOSIELENE LARA CHAN, Petitioner,


vs.
JOHNNY T. CHAN, Respondent.

DECISION

ABAD, J.:

This case is about the propriety of issuing a subpoena duces tecum for the production and
submission in court of the respondent husband's hospital record in a case for declaration of
nullity of marriage where one of the issues is his mental fitness as a husband.

The Facts and the Case

On February 6, 2006 petitioner Josielene Lara Chan (Josielene) filed before the Regional Trial
Court (RTC) of Makati City, Branch 144 a petition for the declaration of nullity of her marriage
to respondent Johnny Chan (Johnny), the dissolution of their conjugal partnership of gains, and
the award of custody of their children to her. Josielene claimed that Johnny failed to care for and
support his family and that a psychiatrist diagnosed him as mentally deficient due to incessant
drinking and excessive use of prohibited drugs. Indeed, she had convinced him to undergo
hospital confinement for detoxification and rehabilitation.

Johnny resisted the action, claiming that it was Josielene who failed in her wifely duties. To save
their marriage, he agreed to marriage counseling but when he and Josielene got to the hospital,
two men forcibly held him by both arms while another gave him an injection. The marriage
relations got worse when the police temporarily detained Josielene for an unrelated crime and
released her only after the case against her ended. By then, their marriage relationship could no
longer be repaired.

During the pre-trial conference, Josielene pre-marked the Philhealth Claim Form1 that Johnny
attached to his answer as proof that he was forcibly confined at the rehabilitation unit of a
hospital. The form carried a physicians handwritten note that Johnny suffered from
"methamphetamine and alcohol abuse." Following up on this point, on August 22, 2006
Josielene filed with the RTC a request for the issuance of a subpoena duces tecum addressed to
Medical City, covering Johnnys medical records when he was there confined. The request was
accompanied by a motion to "be allowed to submit in evidence" the records sought by subpoena
duces tecum.2

Johnny opposed the motion, arguing that the medical records were covered by physician-patient
privilege. On September 13, 2006 the RTC sustained the opposition and denied Josielenes
motion. It also denied her motion for reconsideration, prompting her to file a special civil action
of certiorari before the Court of Appeals (CA) in CA-G.R. SP 97913, imputing grave abuse of
discretion to the RTC.

On September 17, 2007 the CA3 denied Josielenes petition. It ruled that, if courts were to allow
the production of medical records, then patients would be left with no assurance that whatever
relevant disclosures they may have made to their physicians would be kept confidential. The
prohibition covers not only testimonies, but also affidavits, certificates, and pertinent hospital
records. The CA added that, although Johnny can waive the privilege, he did not do so in this
case. He attached the Philhealth form to his answer for the limited purpose of showing his
alleged forcible confinement.

Question Presented

The central question presented in this case is:

Whether or not the CA erred in ruling that the trial court correctly denied the issuance of a
subpoena duces tecum covering Johnnys hospital records on the ground that these are covered
by the privileged character of the physician-patient communication.

The Ruling of the Court

Josielene requested the issuance of a subpoena duces tecum covering the hospital records of
Johnnys confinement, which records she wanted to present in court as evidence in support of her
action to have their marriage declared a nullity. Respondent Johnny resisted her request for
subpoena, however, invoking the privileged character of those records. He cites Section 24(c),
Rule 130 of the Rules of Evidence which reads:

SEC. 24. Disqualification by reason of privileged communication. The following persons


cannot testify as to matters learned in confidence in the following cases:

xxxx

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without
the consent of the patient, be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in that capacity, and which would blacken
the reputation of the patient.

The physician-patient privileged communication rule essentially means that a physician who gets
information while professionally attending a patient cannot in a civil case be examined without
the patients consent as to any facts which would blacken the latters reputation. This rule is
intended to encourage the patient to open up to the physician, relate to him the history of his
ailment, and give him access to his body, enabling the physician to make a correct diagnosis of
that ailment and provide the appropriate cure. Any fear that a physician could be compelled in
the future to come to court and narrate all that had transpired between him and the patient might
prompt the latter to clam up, thus putting his own health at great risk.4

1. The case presents a procedural issue, given that the time to object to the admission of
evidence, such as the hospital records, would be at the time they are offered. The offer could be
made part of the physicians testimony or as independent evidence that he had made entries in
those records that concern the patients health problems.

Section 36, Rule 132, states that objections to evidence must be made after the offer of such
evidence for admission in court. Thus:

SEC. 36. Objection. Objection to evidence offered orally must be made immediately after the
offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefor shall become reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice of the offer
unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified.

Since the offer of evidence is made at the trial, Josielenes request for subpoena duces tecum is
premature. She will have to wait for trial to begin before making a request for the issuance of a
subpoena duces tecum covering Johnnys hospital records. It is when those records are produced
for examination at the trial, that Johnny may opt to object, not just to their admission in evidence,
but more so to their disclosure. Section 24(c), Rule 130 of the Rules of Evidence quoted above is
about non-disclosure of privileged matters.

2. It is of course possible to treat Josielenes motion for the issuance of a subpoena duces tecum
covering the hospital records as a motion for production of documents, a discovery procedure
available to a litigant prior to trial. Section 1, Rule 27 of the Rules of Civil Procedure provides:

SEC. 1. Motion for production or inspection; order. Upon motion of any party showing good
cause therefor, the court in which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible things,
not privileged, which constitute or contain evidence material to any matter involved in the action
and which are in his possession, custody or control; or (b) order any party to permit entry upon
designated land or other property in his possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any designated relevant object or
operation thereon. The order shall specify the time, place and manner of making the inspection
and taking copies and photographs, and may prescribe such terms and conditions as are just.
(Emphasis supplied)

But the above right to compel the production of documents has a limitation: the documents to be
disclosed are "not privileged."

Josielene of course claims that the hospital records subject of this case are not privileged since it
is the "testimonial" evidence of the physician that may be regarded as privileged. Section 24(c)
of Rule 130 states that the physician "cannot in a civil case, without the consent of the patient, be
examined" regarding their professional conversation. The privilege, says Josielene, does not
cover the hospital records, but only the examination of the physician at the trial.

To allow, however, the disclosure during discovery procedure of the hospital recordsthe
results of tests that the physician ordered, the diagnosis of the patients illness, and the advice or
treatment he gave himwould be to allow access to evidence that is inadmissible without the

patients consent. Physician memorializes all these information in the patients records.
Disclosing them would be the equivalent of compelling the physician to testify on privileged
matters he gained while dealing with the patient, without the latters prior consent.

3. Josielene argues that since Johnny admitted in his answer to the petition before the RTC that
he had been confined in a hospital against his will and in fact attached to his answer a Philhealth
claim form covering that confinement, he should be deemed to have waived the privileged
character of its records. Josielene invokes Section 17, Rule 132 of the Rules of Evidence that
provides:

SEC. 17. When part of transaction, writing or record given in evidence, the remainder
admissible. When part of an act, declaration, conversation, writing or record is given in
evidence by one party, the whole of the same subject may be inquired into by the other, and
when a detached act, declaration, conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its understanding may also be given
in evidence.1wphi1

But, trial in the case had not yet begun. Consequently, it cannot be said that Johnny had already
presented the Philhealth claim form in evidence, the act contemplated above which would justify
Josielene into requesting an inquiry into the details of his hospital confinement. Johnny was not
yet bound to adduce evidence in the case when he filed his answer. Any request for disclosure of
his hospital records would again be premature.

For all of the above reasons, the CA and the RTC were justified in denying Josielene her request
for the production in court of Johnnys hospital records.

ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Decision of the Court of
Appeals in CA-G.R. SP 97913 dated September 17, 2007.

SO ORDERED.
ROBERTO A. ABAD
Associate Justice

Lacurom vs Jacoba

THIRD DIVISION

JUDGE UBALDINO A. LACUROM, A.C. No. 5921

Presiding Judge, Regional Trial Court,

Cabanatuan City, Branch 29 and Present:

Pairing Judge, Branch 30,

Complainant, QUISUMBING, J.,

Chairperson,

CARPIO,

- versus - CARPIO MORALES, and

TINGA, JJ.

ATTY. ELLIS F. JACOBA and Promulgated:

ATTY. OLIVIA VELASCO-JACOBA,

Respondents. March 10, 2006

x--------------------------------------------------x
DECISION

CARPIO, J.:

The Case

This administrative case arose from a complaint filed on 22 October 2001 by


Judge Ubaldino A. Lacurom (Judge Lacurom), Pairing Judge, Regional Trial Court
of Cabanatuan City, Branch 30, against respondent-spouses Atty. Ellis F. Jacoba and
Atty. Olivia Velasco-Jacoba (respondents). Complainant charged respondents with
violation of Rules 11.03,1[1] 11.04,2[2] and 19.013[3] of the Code of Professional
Responsibility.

The Facts
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Alejandro R.
Veneracion (Veneracion) in a civil case for unlawful detainer against defendant
Federico Barrientos (Barrientos).4[4] The Municipal Trial Court of Cabanatuan City
rendered judgment in favor of Veneracion but Barrientos appealed to the Regional
Trial Court. The case was raffled to Branch 30 where Judge Lacurom was sitting as
pairing judge.

On 29 June 2001, Judge Lacurom issued a Resolution (Resolution) reversing


the earlier judgments rendered in favor of Veneracion.5[5] The dispositive portion
reads:

WHEREFORE, this Court hereby REVERSES its Decision dated


December 22, 2000, as well as REVERSES the Decision of the court a quo dated
July 22, 1997.

Furthermore, the plaintiff-appellee Alejandro Veneracion is ordered to


CEASE and DESIST from ejecting the defendant-appellant Federico Barrientos
from the 1,000 square meter homelot covered by TCT No. T-75274, and the smaller
area of one hundred forty-seven square meters, within the 1,000 sq.m. covered by
TCT No. T-78613, and the house thereon standing covered by Tax Declaration No.
02006-01137, issued by the City Assessor of Cabanatuan City; and Barrientos is
ordered to pay Veneracion P10,000.00 for the house covered by Tax Declaration
No. 02006-01137.

SO ORDERED.6[6]
Veneracions counsel filed a Motion for Reconsideration (with Request for
Inhibition)7[7] dated 30 July 2001 (30 July 2001 motion), pertinent portions of
which read:

II. PREFATORY STATEMENT

This RESOLUTION of REVERSAL is an ABHORRENT NULLITY as it


is entirely DEVOID of factual and legal basis. It is a Legal MONSTROSITY in the
sense that the Honorable REGIONAL TRIAL COURT acted as if it were the
DARAB (Dept. of Agrarian Reform ADJUDICATION BOARD)! x x x HOW
HORRIBLE and TERRIBLE! The mistakes are very patent and glaring! x x x

xxxx

III. GROUNDS FOR RECONSIDERATION

1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily


and Suddenly Reversing the Findings of the Lower Court Judge and the Regular
RTC Presiding Judge:

x x x The defendant filed a Motion for Reconsideration, and after a very


questionable SHORT period of time, came this STUNNING and SUDDEN
REVERSAL. Without any legal or factual basis, the Hon. Pairing Judge simply and
peremptorily REVERSED two (2) decisions in favor of the plaintiff. This is highly
questionable, if not suspicious, hence, this Motion for Reconsideration.

xxxx

[The Resolution] assumes FACTS that have not been established and
presumes FACTS not part of the records of the case, all loaded in favor of the
alleged TENANT. Clearly, the RESOLUTION is an INSULT to the Judiciary and
an ANACHRONISM in the Judicial Process. Need we say more?

xxxx

4. The Honorable Pairing Court Presiding Judge ERRED in Holding That


the Defendant is Entitled to a Homelot, and That the Residential LOT in Question
is That Homelot:
THIS ERROR IS STUPENDOUS and a real BONER. Where did the
Honorable PAIRING JUDGE base this conclusion? x x x This HORRENDOUS
MISTAKE must be corrected here and now!

xxxx

6. The Honorable Pairing Court Presiding Judge ERRED Grievously in


Holding and Declaring that The [court] A QUO Erroneously Took Cognizance of
the Case and That It Had No Jurisdiction over the Subject-Matter:

Another HORRIBLE ERROR! Even an average Law Student knows that


JURISDICTION is determined by the averments of the COMPLAINT and not by
the averments in the answer! This is backed up by a Litany of Cases!

xxxx

7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously


ERRED in Ordering the Defendant To Pay P10,000.00 to the Plaintiff As Payment
for Plaintiffs HOUSE:

THIS IS the Last STRAW, but it is also the Best ILLUSTRATION of the
Manifold GLARING ERRORS committed by the Hon. Pairing Court Judge.

xxxx

This Order of the Court for the plaintiff to sell his RESIDENTIAL HOUSE
to the defendant for the ridiculously LOW price of P10,000.00 best illustrates the
Long Line of Faulty reasonings and ERRONEOUS conclusions of the Hon. Pairing
Court Presiding Judge. Like the proverbial MONSTER, the Monstrous Resolution
should be slain on sight!8[8]

The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit himself in
order to give plaintiff a fighting chance and (2) the Resolution be reconsidered and
set aside.9[9] Atty. Olivia Velasco-Jacoba (Velasco-Jacoba) signed the motion on
behalf of the Jacoba-Velasco-Jacoba Law Firm.

On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear before


his sala and explain why she should not be held in contempt of court for the very
disrespectful, insulting and humiliating contents of the 30 July 2001 motion.10[10]
In her Explanation, Comments and Answer,11[11] Velasco-Jacoba claimed that His
Honor knows beforehand who actually prepared the subject Motion; records will
show that the undersigned counsel did not actually or actively participate in this
case.12[12] Velasco-Jacoba disavowed any conscious or deliberate intent to degrade
the honor and integrity of the Honorable Court or to detract in any form from the
respect that is rightfully due all courts of justice.13[13] She rationalized as follows:

x x x at first blush, [the motion] really appears to contain some sardonic, strident
and hard-striking adjectives. And, if we are to pick such stringent words at random
and bunch them together, side-by-side x x x then collectively and certainly they
present a cacophonic picture of total and utter disrespect. x x x

xxxx

We most respectfully submit that plaintiff & counsel did not just fire a
staccato of incisive and hard-hitting remarks, machine-gun style as to be called
contumacious and contemptuous. They were just articulating their feelings of
shock, bewilderment and disbelief at the sudden reversal of their good fortune, not
driven by any desire to just cast aspersions at the Honorable Pairing judge. They
must believe that big monumental errors deserve equally big adjectives, no more
no less. x x x The matters involved were [neither] peripheral nor marginalized, and
they had to call a spade a spade. x x x 14[14]

Nevertheless, Velasco-Jacoba expressed willingness to apologize for whatever


mistake [they] may have committed in a moment of unguarded discretion when
[they] may have stepped on the line and gone out of bounds. She also agreed to have
the allegedly contemptuous phrases stricken off the record.15[15]

On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of


contempt and penalized her with imprisonment for five days and a fine of
P1,000.16[16]

Velasco-Jacoba moved for reconsideration of the 13 September 2001 order.


She recounted that on her way out of the house for an afternoon hearing, Atty. Ellis
Jacoba (Jacoba) stopped her and said O, pirmahan mo na ito kasi last day na, baka
mahuli. (Sign this as it is due today, or it might not be filed on time.) She signed the
pleading handed to her without reading it, in trusting blind faith on her husband of
35 years with whom she entrusted her whole life and future.17[17] This pleading
turned out to be the 30 July 2001 motion which Jacoba drafted but could not sign
because of his then suspension from the practice of law.18[18]

Velasco-Jacoba lamented that Judge Lacurom had found her guilty of


contempt without conducting any hearing. She accused Judge Lacurom of harboring
a personal vendetta, ordering her imprisonment despite her status as senior lady
lawyer of the IBP Nueva Ecija Chapter, already a senior citizen, and a grandmother
many times over.19[19] At any rate, she argued, Judge Lacurom should have
inhibited himself from the case out of delicadeza because [Veneracion] had already
filed against him criminal cases before the Office of the City Prosecutor of
Cabanatuan City and before the Ombudsman.20[20]

The records show that with the assistance of counsel Jacoba and the Jacoba-
Velasco-Jacoba Law Firm, Veneracion had executed an affidavit on 23 August 2001
accusing Judge Lacurom of knowingly rendering unjust judgment through
inexcusable negligence and ignorance21[21] and violating

Section 3(e) of Republic Act No. 3019 (RA 3019).22[22] The first charge became
the subject of a preliminary investigation23[23] by the City Prosecutor of
Cabanatuan City. On the second charge, Veneracion set forth his allegations in a
Complaint-Affidavit24[24] filed on 28 August 2001 with the Office of the Deputy
Ombudsman for Luzon.

Judge Lacurom issued another order on 21 September 2001, this time


directing Jacoba to explain why he should not be held in contempt.25[25] Jacoba
complied by filing an Answer with Second Motion for Inhibition, wherein he denied
that he typed or prepared the 30 July 2001 motion. Against Velasco-Jacobas
statements implicating him, Jacoba invoked the marital privilege rule in
evidence.26[26] Judge Lacurom later rendered a decision27[27] finding Jacoba
guilty of contempt of court and sentencing him to pay a fine of P500.

On 22 October 2001, Judge Lacurom filed the present complaint against


respondents before the Integrated Bar of the Philippines (IBP).

Report and Recommendation of the IBP


Respondents did not file an answer and neither did they appear at the hearing
set by IBP Commissioner Atty. Lydia A. Navarro (IBP Commissioner Navarro)
despite sufficient notice.28[28]

IBP Commissioner Navarro, in her Report and Recommendation of 10


October 2002, recommended the suspension of respondents from the practice of law
for six months.29[29] IBP Commissioner Navarro found that respondents were
prone to us[ing] offensive and derogatory remarks and phrases which amounted to
discourtesy and disrespect for authority.30[30] Although the remarks were not
directed at Judge Lacurom personally, they were aimed at his position as a judge,
which is a smack on the judiciary system as a whole.31[31]

The IBP Board of Governors (IBP Board) adopted IBP Commissioner


Navarros Report and Recommendation, except for the length of suspension which
the IBP Board reduced to three months.32[32] On 10 December 2002, the IBP Board
transmitted its recommendation to this Court, together with the documents
pertaining to the case.
Several days later, Velasco-Jacoba sought reconsideration of the IBP Board
decision, thus:33[33]

xxxx

3. For the information of the Honorable Commission, the present


complaint of Judge Lacurom is sub judice; the same issues involved in this case
are raised before the Honorable Court of Appeals presently pending in CA-
G.R. SP No. 66973 for Certiorari and Mandatory Inhibition with TRO and
Preliminary Injunction x x x;

4. We filed an Administrative Case against Judge Lacurom before the


Supreme Court involving the same issues we raised in the aforementioned
Certiorari case, which was dismissed by the Supreme Court for being premature, in
view of the pending Certiorari case before the Court of Appeals;

5. In like manner, out of respect and deference to the Court of Appeals, the
present complaint should likewise be dismissed and/or suspended pending
resolution of the certiorari case by the Court of Appeals.34[34] (Emphasis supplied)

The Courts Ruling

On a preliminary note, we reject Velasco-Jacobas contention that the present


complaint should be considered sub judice in view of the petition for certiorari and
mandatory inhibition with preliminary injunction (petition for certiorari)35[35] filed
before the Court of Appeals.

The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4


October 2001, seeks to nullify the following orders issued by Judge Lacurom in Civil
Case No. 2836: (1) the Orders dated 26 September 2001 and 9 November 2001
denying respondents respective motions for inhibition; and (2) the 13 September
2001 Order which found Velasco-Jacoba guilty of contempt. The petitioners allege
that Judge Lacurom acted with grave abuse of discretion [amounting] to lack of
jurisdiction, in violation of express provisions of the law and applicable decisions of
the Supreme Court.36[36]

Plainly, the issue before us is respondents liability under the Code of


Professional Responsibility. The outcome of this case has no bearing on the
resolution of the petition for certiorari, as there is neither identity of issues nor causes
of action.

Neither should the Courts dismissal of the administrative complaint against


Judge Lacurom for being premature impel us to dismiss this complaint. Judge
Lacuroms orders in Civil Case No. 2836 could not be the subject of an administrative
complaint against him while a petition for certiorari assailing the same orders is
pending with an appellate court. Administrative remedies are neither alternative nor
cumulative to judicial review where such review is available to the aggrieved parties
and the same has not been resolved with finality. Until there is a final declaration
that the challenged order or judgment is manifestly erroneous, there will be no basis
to conclude whether the judge is administratively liable.37[37]

The respondents are situated differently within the factual setting of this case.
The corresponding implications of their actions also give rise to different liabilities.
We first examine the charge against Velasco-Jacoba.

There is no dispute that the genuine signature of Velasco-Jacoba appears on the 30 July 2001
motion. Velasco-Jacobas responsibility as counsel is governed by Section 3, Rule 7 of the Rules
of Court:

SEC. 3. Signature and address.Every pleading must be signed by the party


or counsel representing him x x x.

The signature of counsel constitutes a certificate by him that he has


read the pleading, that to the best of his knowledge, information, and belief
there is good ground to support it, and that it is not interposed for delay.

x x x Counsel who x x x signs a pleading in violation of this Rule, or


alleges scandalous or indecent matter therein x x x shall be subject to
appropriate disciplinary action. (Emphasis supplied)

By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that


she had read it, she knew it to be meritorious, and it was not for the purpose of
delaying the case. Her signature supplied the motion with legal effect and elevated
its status from a mere scrap of paper to that of a court document.

Velasco-Jacoba insists, however, that she signed the 30 July 2001 motion only
because of her husbands request but she did not know its contents beforehand.
Apparently, this practice of signing each others pleadings is a long-standing
arrangement between the spouses. According to Velasco-Jacoba, [s]o implicit is
[their] trust for each other that this happens all the time. Through the years, [she]
already lost count of the number of pleadings prepared by one that is signed by the
other.38[38] By Velasco-Jacobas own admission, therefore, she violated Section 3
of Rule 7. This violation is an act of falsehood before the courts, which in itself is a
ground

for subjecting her to disciplinary action, independent of any other ground arising
from the contents of the 30 July 2001 motion.39[39]

We now consider the evidence as regards Jacoba. His name does not appear
in the 30 July 2001 motion. He asserts the inadmissibility of Velasco-Jacobas
statement pointing to him as the author of the motion.
The Court cannot easily let Jacoba off the hook. Firstly, his Answer with
Second Motion for Inhibition did not contain a denial of his wifes account. Instead,
Jacoba impliedly admitted authorship of the motion by stating that he trained his
guns and fired at the errors which he perceived and believed to be gigantic and
monumental.40[40]

Secondly, we find Velasco-Jacobas version of the facts more plausible, for


two reasons: (1) her reaction to the events was immediate and spontaneous, unlike
Jacobas defense which was raised only after a considerable time had elapsed from
the eruption of the controversy; and (2) Jacoba had been counsel of record for
Veneracion in Civil Case No. 2836, supporting Velasco-Jacobas assertion that she
had not actually participate[d] in the prosecution of the case.

Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that
Judge Lacurom await the outcome of the petition for certiorari before deciding the
contempt charge against him.41[41] This petition for certiorari anchors some of its
arguments on the premise that the motion was, in fact, Jacobas handiwork.42[42]
The marital privilege rule, being a rule of evidence, may be waived by failure
of the claimant to object timely to its presentation or by any conduct that may be
construed as implied consent.43[43] This waiver applies to Jacoba who impliedly
admitted authorship of the 30 July 2001 motion.

The Code of Professional Responsibility provides:

Rule 11.03.A lawyer shall abstain from scandalous, offensive or menacing


language or behavior before the Courts.

Rule 11.04.A lawyer shall not attribute to a Judge motives not supported
by the record or have no materiality to the case.

No doubt, the language contained in the 30 July 2001 motion greatly exceeded
the vigor required of Jacoba to defend ably his clients cause. We recall his use of the
following words and phrases: abhorrent nullity, legal monstrosity, horrendous
mistake, horrible error, boner, and an insult to the judiciary and an anachronism in
the judicial process. Even Velasco-Jacoba acknowledged that the words created a
cacophonic picture of total and utter disrespect.44[44]

Respondents nonetheless try to exculpate themselves by saying that every


remark in the 30 July 2001 motion was warranted. We disagree.
Well-recognized is the right of a lawyer, both as an officer of the court and as
a citizen, to criticize in properly respectful terms and through legitimate channels
the acts of courts and judges.45[45] However, even the most hardened judge would
be scarred by the scurrilous attack made by the 30 July 2001 motion on Judge
Lacuroms Resolution. On its face, the Resolution presented the facts correctly and
decided the case according to supporting law and jurisprudence. Though a lawyers
language may be forceful and emphatic, it should always be dignified and respectful,
befitting the dignity of the legal profession.46[46] The use of unnecessary language
is proscribed if we are to promote high esteem in the courts and trust in judicial
administration.47[47]

In maintaining the respect due to the courts, a lawyer is not merely enjoined
to use dignified language but also to pursue the clients cause through fair and honest
means, thus:

Rule 19.01.A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in presenting or
threaten to present unfounded criminal charges to obtain an improper advantage in
any case or proceeding.

Shortly after the filing of the 30 July 2001 motion but before its resolution,
Jacoba assisted his client in instituting two administrative cases against Judge
Lacurom. As we have earlier noted, Civil Case No. 2836 was then pending before
Judge Lacuroms sala. The Courts attention is drawn to the fact that the timing of the
filing of these administrative cases could very well raise the suspicion that the cases
were intended as leverage against Judge Lacurom.

Respondent spouses have both been the subject of administrative cases before
this Court. In Administrative Case No. 2594, we suspended Jacoba from the practice
of law for a period of six months because of his failure to file an action for the
recovery of possession of property despite the lapse of two and a half years from
receipt by him of P550 which his client gave him as filing and sheriffs fees.48[48]
In Administrative Case No. 5505, Jacoba was once again found remiss in his duties
when he failed to file the appellants brief, resulting in the dismissal of his clients
appeal. We imposed the penalty of one year suspension.49[49]

As for Velasco-Jacoba, only recently this Court fined her P5,000 for appearing
in barangay conciliation proceedings on behalf of a party, knowing fully well the
prohibition contained in Section 415 of the Local Government Code.50[50]

In these cases, the Court sternly warned respondents that a repetition of similar
acts would merit a stiffer penalty. Yet, here again we are faced with the question of
whether respondents have conducted themselves with the courtesy and candor
required of them as members of the bar and officers of the court. We find
respondents to have fallen short of the mark.

WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of law


for two (2) years effective upon finality of this Decision. We also SUSPEND Atty.
Olivia Velasco-Jacoba from the practice of law for two (2) months effective upon
finality of this Decision. We STERNLY WARN respondents that a repetition of the
same or similar infraction shall merit a more severe sanction.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents personal records as attorneys; the Integrated Bar of the
Philippines; and all courts in the country for their information and guidance.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

Samala vs Valencia
EN BANC

A.C. No. 5439 January 22, 2007

CLARITA J. SAMALA, Complainant,


vs.
ATTY. LUCIANO D. VALENCIA, Respondent.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

Before us is a complaint1 dated May 2, 2001 filed by Clarita J. Samala (complainant) against
Atty. Luciano D. Valencia (respondent) for Disbarment on the following grounds: (a) serving on
two separate occasions as counsel for contending parties; (b) knowingly misleading the court by
submitting false documentary evidence; (c) initiating numerous cases in exchange for
nonpayment of rental fees; and (d) having a reputation of being immoral by siring illegitimate
children.

After respondent filed his Comment, the Court, in its Resolution of October 24, 2001, referred
the case to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. 2

The investigation was conducted by Commissioner Demaree Jesus B. Raval. After a series of
hearings, the parties filed their respective memoranda 3 and the case was deemed submitted for
resolution.

Commissioner Wilfredo E.J.E. Reyes prepared the Report and Recommendation 4 dated January
12, 2006. He found respondent guilty of violating Canons 15 and 21 of the Code of Professional
Responsibility and recommended the penalty of suspension for six months.

In a minute Resolution 5 passed on May 26, 2006, the IBP Board of Governors adopted and
approved the report and recommendation of Commissioner Reyes but increased the penalty of
suspension from six months to one year.

We adopt the report of the IBP Board of Governors except as to the issue on immorality and as
to the recommended penalty.

On serving as counsel for contending parties.

Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial Court (RTC),
Branch 272, Marikina City, entitled "Leonora M. Aville v. Editha Valdez" for nonpayment of
rentals, herein respondent, while being the counsel for defendant Valdez, also acted as counsel
for the tenants Lagmay, Valencia, Bustamante and Bayuga 6 by filing an Explanation and
Compliance before the RTC. 7
In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch 75, Marikina
City, entitled "Editha S. Valdez and Joseph J. Alba, Jr. v. Salve Bustamante and her husband" for
ejectment, respondent represented Valdez against Bustamante - one of the tenants in the property
subject of the controversy. Defendants appealed to the RTC, Branch 272, Marikina City
docketed as SCA Case No. 99-341-MK. In his decision dated May 2, 2000, 8 Presiding Judge
Reuben P. dela Cruz 9 warned respondent to refrain from repeating the act of being counsel of
record of both parties in Civil Case No. 95-105-MK.

But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina City, entitled
"Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds of Marikina City," respondent, as
counsel for Valdez, filed a Complaint for Rescission of Contract with Damages and Cancellation
of Transfer Certificate of Title No. 275500 against Alba, respondent's former client in Civil Case
No. 98-6804 and SCA Case No. 99-341-MK.

Records further reveal that at the hearing of November 14, 2003, respondent admitted that in
Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one of the tenants) but not for
Bustamante and Bayuga 10 albeit he filed the Explanation and Compliance for and in behalf of
the tenants. 11 Respondent also admitted that he represented Valdez in Civil Case No. 98-6804
and SCA Case No. 99-341-MK against Bustamante and her husband but denied being the
counsel for Alba although the case is entitled "Valdez and Alba v. Bustamante and her
husband," because Valdez told him to include Alba as the two were the owners of the property 12
and it was only Valdez who signed the complaint for ejectment. 13 But, while claiming that
respondent did not represent Alba, respondent, however, avers that he already severed his
representation for Alba when the latter charged respondent with estafa. 14 Thus, the filing of
Civil Case No. 2000-657-MK against Alba.

Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a lawyer shall not
represent conflicting interests except by written consent of all concerned given after a full
disclosure of the facts.

A lawyer may not, without being guilty of professional misconduct, act as counsel for a person
whose interest conflicts with that of his present or former client. 15 He may not also undertake to
discharge conflicting duties any more than he may represent antagonistic interests. This stern
rule is founded on the principles of public policy and good taste. 16 It springs from the relation of
attorney and client which is one of trust and confidence. Lawyers are expected not only to keep
inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing
for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of
paramount importance in the administration of justice. 17

One of the tests of inconsistency of interests is whether the acceptance of a new relation would
prevent the full discharge of the lawyer's duty of undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or double-dealing in the performance of that duty. 18

The stern rule against representation of conflicting interests is founded on principles of public
policy and good taste. It springs from the attorney's duty to represent his client with undivided
fidelity and to maintain inviolate the client's confidence as well as from the injunction forbidding
the examination of an attorney as to any of the privileged communications of his client. 19

An attorney owes loyalty to his client not only in the case in which he has represented him but
also after the relation of attorney and client has terminated. 20 The bare attorney-client
relationship with a client precludes an attorney from accepting professional employment from
the client's adversary either in the same case 21 or in a different but related action. 22 A lawyer is
forbidden from representing a subsequent client against a former client when the subject matter
of the present controversy is related, directly or indirectly, to the subject matter of the previous
litigation in which he appeared for the former client. 23

We held in Nombrado v. Hernandez 24 that the termination of the relation of attorney and client
provides no justification for a lawyer to represent an interest adverse to or in conflict with that of
the former client. The reason for the rule is that the client's confidence once reposed cannot be
divested by the expiration of the professional employment. 25 Consequently, a lawyer should not,
even after the severance of the relation with his client, do anything which will injuriously affect
his former client in any matter in which he previously represented him nor should he disclose or
use any of the client's confidences acquired in the previous relation. 26

In this case, respondent's averment that his relationship with Alba has long been severed by the
act of the latter of not turning over the proceeds collected in Civil Case No. 98-6804, in
connivance with the complainant, is unavailing. Termination of the attorney-client relationship
precludes an attorney from representing a new client whose interest is adverse to his former
client. Alba may not be his original client but the fact that he filed a case entitled "Valdez and
Alba v. Bustamante and her husband," is a clear indication that respondent is protecting the
interests of both Valdez and Alba in the said case. Respondent cannot just claim that the lawyer-
client relationship between him and Alba has long been severed without observing Section 26,
Rule 138 of the Rules of Court wherein the written consent of his client is required.

In Gonzales v. Cabucana, Jr., 27 citing the case of Quiambao v. Bamba, 28 we held that:

The proscription against representation of conflicting interests applies to a situation where the
opposing parties are present clients in the same action or in an unrelated action. It is of no
moment that the lawyer would not be called upon to contend for one client that which the lawyer
has to oppose for the other client, or that there would be no occasion to use the confidential
information acquired from one to the disadvantage of the other as the two actions are wholly
unrelated. It is enough that the opposing parties in one case, one of whom would lose the suit, are
present clients and the nature or conditions of the lawyer's respective retainers with each of them
would affect the performance of the duty of undivided fidelity to both clients. 29

Respondent is bound to comply with Canon 21 of the Code of Professional Responsibility which
states that "a lawyer shall preserve the confidences and secrets of his client even after the
attorney-client relation is terminated."

The reason for the prohibition is found in the relation of attorney and client, which is one of trust
and confidence of the highest degree. A lawyer becomes familiar with all the facts connected
with his client's case. He learns from his client the weak points of the action as well as the strong
ones. Such knowledge must be considered sacred and guarded with care. 30

From the foregoing, it is evident that respondent's representation of Valdez and Alba against
Bustamante and her husband, in one case, and Valdez against Alba, in another case, is a clear
case of conflict of interests which merits a corresponding sanction from this Court. Respondent
may have withdrawn his representation in Civil Case No. 95-105-MK upon being warned by the
court, 31 but the same will not exculpate him from the charge of representing conflicting interests
in his representation in Civil Case No. 2000-657-MK.

Respondent is reminded to be more cautious in accepting professional employments, to refrain


from all appearances and acts of impropriety including circumstances indicating conflict of
interests, and to behave at all times with circumspection and dedication befitting a member of the
Bar, especially observing candor, fairness and loyalty in all transactions with his clients. 32

On knowingly misleading the court by submitting false documentary evidence.

Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch 75 for ejectment,
respondent submitted TCT No. 273020 as evidence of Valdez's ownership despite the fact that a
new TCT No. 275500 was already issued in the name of Alba on February 2, 1995.

Records reveal that respondent filed Civil Case No. 00-7137 on November 27, 2000 and
presented TCT No. 273020 as evidence of Valdez's ownership of the subject property. 33 During
the hearing before Commissioner Raval, respondent avers that when the Answer was filed in the
said case, that was the time that he came to know that the title was already in the name of Alba;
so that when the court dismissed the complaint, he did not do anything anymore. 34 Respondent
further avers that Valdez did not tell him the truth and things were revealed to him only when the
case for rescission was filed in 2002.

Upon examination of the record, it was noted that Civil Case No. 2000-657-MK for rescission of
contract and cancellation of TCT No. 275500 was also filed on November 27, 2000, 35 before
RTC, Branch 273, Marikina City, thus belying the averment of respondent that he came to know
of Alba's title only in 2002 when the case for rescission was filed. It was revealed during the
hearing before Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-MK were filed
on the same date, although in different courts and at different times.

Hence, respondent cannot feign ignorance of the fact that the title he submitted was already
cancelled in lieu of a new title issued in the name of Alba in 1995 yet, as proof of the latter's
ownership.

Respondent failed to comply with Canon 10 of the Code of Professional Responsibility which
provides that a lawyer shall not do any falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the Court to be mislead by any artifice. It matters not that the trial
court was not misled by respondent's submission of TCT No. 273020 in the name of Valdez, as
shown by its decision dated January 8, 2002 36 dismissing the complaint for ejectment. What is
decisive in this case is respondent's intent in trying to mislead the court by presenting TCT No.
273020 despite the fact that said title was already cancelled and a new one, TCT No. 275500,
was already issued in the name of Alba.

In Young v. Batuegas,37 we held that a lawyer must be a disciple of truth. He swore upon his
admission to the Bar that he will "do no falsehood nor consent to the doing of any in court" and
he shall "conduct himself as a lawyer according to the best of his knowledge and discretion with
all good fidelity as well to the courts as to his clients." 38 He should bear in mind that as an
officer of the court his high vocation is to correctly inform the court upon the law and the facts of
the case and to aid it in doing justice and arriving at correct conclusion. 39 The courts, on the
other hand, are entitled to expect only complete honesty from lawyers appearing and pleading
before them. While a lawyer has the solemn duty to defend his client's rights and is expected to
display the utmost zeal in defense of his client's cause, his conduct must never be at the expense
of truth.

A lawyer is the servant of the law and belongs to a profession to which society has entrusted the
administration of law and the dispensation of justice. 40 As such, he should make himself more
an exemplar for others to emulate. 41

>On initiating numerous cases in exchange for nonpayment of rental fees.

Complainant alleges that respondent filed the following cases: (a) Civil Case No. 2000-657-
MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the MTC, Branch 75; and (c)
I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v. Samala" for estafa and grave
coercion, respectively, before the Marikina City Prosecutor. Complainant claims that the
two criminal cases were filed in retaliation for the cases she filed against Lagmay docketed
as I.S. No. 00-4306 for estafa and I.S. No. 00-4318 against Alvin Valencia (son of
respondent) for trespass to dwelling.

As culled from the records, Valdez entered into a retainer agreement with respondent. As
payment for his services, he was allowed to occupy the property for free and utilize the
same as his office pursuant to their retainer agreement. 42

Respondent filed I.S. Nos. 00-4439 43 and 01-036162 44 both entitled "Valencia v. Samala"
for estafa and grave coercion, respectively, to protect his client's rights against complainant
who filed I.S. No. 00-4306 45 for estafa against Lagmay, and I.S. No. 00-4318 46 against
Alvin Valencia 47 for trespass to dwelling.

We find the charge to be without sufficient basis. The act of respondent of filing the
aforecited cases to protect the interest of his client, on one hand, and his own interest, on
the other, cannot be made the basis of an administrative charge unless it can be clearly
shown that the same was being done to abuse judicial processes to commit injustice.

The filing of an administrative case against respondent for protecting the interest of his
client and his own right would be putting a burden on a practicing lawyer who is obligated
to defend and prosecute the right of his client.
On having a reputation for being immoral by siring illegitimate children.

We find respondent liable for being immoral by siring illegitimate children.

During the hearing, respondent admitted that he sired three children by Teresita Lagmay
who are all over 20 years of age, 48 while his first wife was still alive. He also admitted that
he has eight children by his first wife, the youngest of whom is over 20 years of age, and
after his wife died in 1997, he married Lagmay in 1998. 49 Respondent further admitted
that Lagmay was staying in one of the apartments being claimed by complainant. However,
he does not consider his affair with Lagmay as a relationship 50 and does not consider the
latter as his second family. 51 He reasoned that he was not staying with Lagmay because he
has two houses, one in Muntinlupa and another in Marikina. 52

In this case, the admissions made by respondent are more than enough to hold him liable
on the charge of immorality. During the hearing, respondent did not show any remorse. He
even justified his transgression by saying that he does not have any relationship with
Lagmay and despite the fact that he sired three children by the latter, he does not consider
them as his second family. It is noted that during the hearing, respondent boasts in telling
the commissioner that he has two houses - in Muntinlupa, where his first wife lived, and in
Marikina, where Lagmay lives. 53 It is of no moment that respondent eventually married
Lagmay after the death of his first wife. The fact still remains that respondent did not live
up to the exacting standard of morality and decorum required of the legal profession.

Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct. It may be difficult to specify
the degree of moral delinquency that may qualify an act as immoral, yet, for purposes of
disciplining a lawyer, immoral conduct has been defined as that "conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the opinion of respectable
members of the community. 54 Thus, in several cases, the Court did not hesitate to
discipline a lawyer for keeping a mistress in defiance of the mores and sense of morality of
the community. 55 That respondent subsequently married Lagmay in 1998 after the death
of his wife and that this is his first infraction as regards immorality serve to mitigate his
liability.

ACCORDINGLY, the Court finds respondent Atty. Luciano D. Valencia GUILTY of


misconduct and violation of Canons 21, 10 and 1 of the Code of Professional Responsibility.
He is SUSPENDED from the practice of law for three (3) years, effective immediately upon
receipt of herein Resolution.

Let copies of this Resolution be furnished all courts of the land, the Integrated Bar of the
Philippines as well as the Office of the Bar Confidant for their information and guidance,
and let it be entered in respondent's personal records.

SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

Almonte vs Vasquez

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and orders issued by respondent
Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as chief accountant and record custodian, respectively, of the Economic
Intelligence and Investigation Bureau (EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and all
evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from enforcing his orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal
Management Division. The subpoena duces tecum was issued by the Ombudsman in connection with his investigation of an anonymous
letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have
been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of Finance, with copies furnished several
government offices, including the Office of the Ombudsman.

The letter reads in pertinent parts:

1 These are the things that I have been observing. During the implementation of E.O. 127 on May
1, 1988, one hundred ninety (190) personnel were dismissed. Before that implementation, we had
a monthly savings of P500,000.00 from unfilled plantilla position plus the implementation of RA
6683 wherein seventy (70) regular employees availed a total amount of P1,400,000.00 was
saved from the government monthly. The question is, how do they used or disbursed this
savings? The EIIB has a syndicate headed by the Chief of Budget Division who is manipulating
funds and also the brain of the so called "ghost agents" or the "Emergency Intelligence Agents"
(EIA). The Commissioner of EIIB has a biggest share on this. Among his activities are:

a) Supporting RAM wherein he is involved. He gives big amount especially


during the Dec. Failed coup.

b) Payment for thirty five (30) mini UZI's.

c) Payment for the purchased of Maxima '87 for personal used of the
Commissioner.

d) Another observation was the agents under the Director of NCR EIIB is
the sole operating unit within Metro Manila which was approved by no less
than the Commissioner due to anomalous activities of almost all agents
assigned at the central office directly under the Commissioner. Retired Brig.
Gen. Almonte as one of the Anti-Graft board member of the Department of
Finance should not tolerate this. However, the Commissioner did not
investigate his own men instead, he placed them under the 15-30 payroll.
e) Many more which are personal.

2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly
Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to
submit an actual filled up position because almost half of it are vacant and still they are releasing
it. Are EIIB plantilla position classified? It is included in the Personal Services Itemization (PSI)
and I believe it is not classified and a ruling from Civil Service Commission that EIIB is not
exempted from Civil Service. Another info, when we had salary differential last Oct '88 all money
for the whole plantilla were released and from that alone, Millions were saved and converted to
ghost agents of EIA.

3. Another thing that I have observed was the Chief Budget Division possesses high caliber
firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the Assistant
Commissioner wherein he is not an agent of EIIB and authorized as such according to
memorandum order number 283 signed by the President of the Republic of the Philippines
effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain civilian who possesses
numerous assorted high powered firearms. Agents plus one personnel from the legal proclaimed
only five (5) firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the big time smuggler
syndicate monthly and brokers every week for them not to be apprehended.

Another observation is the commissioner allocates funds coming from the intelligence funds to
the media to sustain their good image of the bureau.

In his comment 1
on the letter-complaint, petitioner Almonte denied that as a result of the separation of
personnel, the EIIB had made some savings. He averred that the only funds released to his agency by
the Department of Budget and Management (DBM) were those corresponding to 947 plantilla positions
which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that
disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of the
agency had been cleared by the Commission on Audit (COA); that the case of the 30 Uzis had already
been investigated by Congress, where it was shown that it was not the EIIB but an agent who had spent
for the firearms and they were only loaned to the EIIB pending appropriation by Congress; that, contrary
to the charge that a Maxima car had been purchased for his use, he was using a government issued car
from the NICA; that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so
that they could be given reorientation and retraining; that the allegation that the EIIB operatives pilfered
smuggled firearms was without factual basis because the firearms were the subject of seizure
proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising
toward employees found involved in anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was because of newsworthy stories.
Petitioner asked that the complaint be dismissed and the case considered closed.

Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990 that
savings had been realized from the implementation of E.O. No. 127, since the DBM provided allocations
for only the remaining 947 personnel. He said that the disbursement of funds for the plantilla positions for
"overt" and "covert" personnel had been cleared by the COA and that the high-powered firearms had
been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F. Sao, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the points
raised by complainant as constitutive of the alleged anomalies." 3 He, therefore, asked for authority to
conduct a preliminary investigation. Anticipating the grant of his request, he issued a subpoena 4 to
petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the affidavits of their
witnesses, as well as a subpoena duces tecum 5 to the Chief of the EIIB's Accounting Division ordering
him to bring "all documents relating to Personal Services Funds for the year 1988 and all evidence, such
as vouchers (salary) for the whole plantilla of EIIB for 1988."
Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his
Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the subpoena in view
of the fact that there were no affidavits filed against petitioners. But he denied their motion to quash the
subpoena duces tecum. He ruled that petitioners were not being forced to produce evidence against
themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio
Rogado. In addition the Ombudsman ordered the Chief of the Records a Section of the EIIB, petitioner
Elisa Rivera, to produce before the investigator "all documents relating to Personnel Service Funds, for
the year 1988, and all documents, salary vouchers for the whole plantilla of the EIIB for 1988, within ten
(10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were EIIB
employees under their supervision and that the Ombudsman was doing indirectly what he could not do
directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this
petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a demand by a
citizen for information under the freedom of information guarantee of the Constitution. 7 Rather it concerns
the power of the Office of the Ombudsman to obtain evidence in connection with an investigation
conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus petitioners raise the
following issues: 8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED


AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE
CASE" WITHIN THE CONCEPT OF THE CONSTITUTION IN WHICH
PUBLIC RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE OF
HIS SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL
DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR
THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS
(SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988."

II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL


SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES,
SUCH AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF
EIIB FOR 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND THE
REACH OF PUBLIC RESPONDENT'S SUBPOENA DUCES TECUM.

I.

There are several subsidiary issues raised by petitioners, but the principal ones revolve on the question
whether petitioners can be ordered to produce documents relating to personal services and salary
vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the documents
in question is resisted on the ground that "knowledge of EIIB's documents relative to its Personal Services
Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations, movements, targets,
strategies, and tactics and the whole of its being" and this could "destroy the EIIB." 9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the
relevancy or materiality of the documents required to be produced, to the pending investigation in the
Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of
privilege.

A.
At common law a governmental privilege against disclosure is recognized with respect to state secrets
bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such
paramount importance as in and of itself transcending the individual interests of a private citizen, even
though, as a consequence thereof, the plaintiff cannot enforce his legal rights. 10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the confidentiality of his conversations and correspondence,
which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States v.
Nixon: 11

The expectation of a President to the confidentiality of his conversations and


correspondence, like the claim of confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of the government and
inextricably rooted in the separation of powers under the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new name,
although not necessarily a new birth. 12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact that
Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated their
working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress that Justices
and judges of lower federal courts "should be encouraged to make such arrangements as will assure the
preservation and eventual availability of their personal papers, especially the deposit of their papers in the
same depository they select for [their] Public Papers" 13 was rebuffed by the Justices who, in a letter to
the Chairman of the Subcommittee on Regulation and Government Information of the U.S. Senate,
referred to "difficult concerns respecting the appropriate separation that must be maintained between the
legislative branch and this Court." 14

There are, in addition to such privileges, statutorily-created ones such as the Government's privilege to
withhold the identity of persons who furnish information of violations of laws. 15

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as
follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of
executive officers. Yet we will not go so far as to say that the court may automatically
require a complete disclosure to the judge before the claim of privilege will be accepted in
any case. It may be possible to satisfy the court, from all the circumstances of the case,
that there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged. When this is the
case, the occasion for the privilege is appropriate, and the court should not jeopardize the
security which the privilege is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers. . . . In each case, the showing of
necessity which is made will determine how far the court should probe in satisfying itself
that the occasion for invoking the privilege is appropriate. Where there is a strong
showing of necessity, the claim of privilege should not be lightly accepted, but even the
most compelling necessity cannot overcome the claim of privilege if the court is ultimately
satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal
claim of privilege, made under the circumstances of this case, will have to prevail. 16

On the other hand, where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an absolute privilege of the President
against a subpoena considered essential to the enforcement of criminal laws. 17

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production
of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation
of intelligence reports and information regarding "illegal activities affecting the national economy, such as,
but not limited to, economic sabotage, smuggling, tax evasion, dollar salting." 18 Consequently, while in
cases which involve state secrets it may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will expose military matters without
compelling production, 19 no similar excuse can be made for a privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records of the EIIB
as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to support
their contention that there is adequate safeguard against misuse of public funds, provides that the "only
item of expenditure which should be treated strictly confidential" is that which refers to the "purchase of
information and payment of rewards." Thus, part V, No. 7 of the Circular reads:

The only item of expenditure which should be treated as strictly confidential because it
falls under the category of classified information is that relating to purchase of information
and payment of rewards. However, reasonable records should be maintained and kept
for inspection of the Chairman, Commission on Audit or his duly authorized
representative. All other expenditures are to be considered unclassified supported by
invoices, receipts and other documents, and, therefore, subject to reasonable inquiry by
the Chairman or his duly authorized representative. 20

It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.

The other statutes and regulations 21 invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the
confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to account for its
funds to the proper authorities. Indeed by denying that there were savings made from certain items in the
agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947
personnel retained after its reorganization, petitioners in effect invited inquiry into the veracity of their
claim. If, as petitioners claim, the subpoenaed records have been examined by the COA and found by it
to be regular in all respects, there is no reason why they cannot be shown to another agency of the
government which by constitutional mandate is required to look into any complaint concerning public
office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled
by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The
plantilla and other personnel records are relevant to his investigation. He and his Deputies are designated
by the Constitution "protectors of the people" and as such they are required by it "to act promptly on
complaints in any form or manner against public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporation." 22
His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more, while
there might have been compelling reasons for the claim of privilege in 1988 when it was asserted by
petitioners, now, seven years later, these reasons may have been attenuated, if they have not in fact
ceased. The agents whose identities could not then be revealed may have ceased from the service of the
EIIB, while the covert missions to which they might have been deployed might either have been
accomplished or abandoned. On the other hand, the Ombudsman's duty to investigate the complaint that
there were in 1988 unfilled positions in the EIIB for which continued funding was received by its officials
and put to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would
only justify ordering their inspection in camera but not their nonproduction. However, as concession to the
nature of the functions of the EIIB and just to be sure no information of a confidential character is
disclosed, the examination of records in this case should be made in strict confidence by the Ombudsman
himself. Reference may be made to the documents in any decision or order which the Ombudsman may
render or issue but only to the extent that it will not reveal covert activities of the agency. Above all, there
must be a scrupulous protection of the documents delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of the
parties is achieved. It is not amiss to state that even matters of national security have been inquired into
in appropriate in camera proceedings by the courts. In Lansang v. Garcia 23 this Court held closed door
sessions, with only the immediate parties and their counsel present, to determine claims that because of
subversion there was imminent danger to public safety warranting the suspension of the writ of habeas
corpus in 1971. Again in Marcos v. Manglapus 24 the Court met behind closed doors to receive military
briefings on the threat posed to national security by the return to the country of the former President and
his family. In the United States, a similar inquiry into the danger to national security as a result of the
publication of classified documents on the Vietnam war was upheld by the U.S. Supreme Court. 25 We
see no reason why similar safeguards cannot be made to enable an agency of the Government, like the
Office of the Ombudsman, to carry out its constitutional duty to protect public interests 26 while insuring
the confidentiality of classified documents.

C.

Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any appropriate case, and
subject to such limitations as may be provided by law" and that because the complaint in this case is
unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As already
stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or
manner" concerning official acts or omissions. Thus, Art. XI, 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify the
complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever form
concerning an official act or omission. It shall act on the complaint immediately and if it
finds the same entirely baseless, it shall dismiss the same and inform the complainant of
such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate
further, it shall first furnish the respondent public officer or employee with a summary of
the complaint and require him to submit a written answer within seventy-two hours from
receipt thereof. If the answer is found satisfactory, it shall dismiss the case. (Emphasis
added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding investigation
and charges made in a pleading in a case in court constituted a sufficient basis for the Ombudsman to
commence investigation, because a formal complaint was really not necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art. XI,
12 means any case concerning official act or omission which is alleged to be "illegal, unjust, improper, or
inefficient." 28 The phrase "subject to such limitations as may be provided by law" refers to such limitations
as may be provided by Congress or, in the absence thereof, to such limitations as may be imposed by the
courts. Such limitations may well include a requirement that the investigation be concluded in camera,
with the public excluded, as exception to the general nature of the proceedings in the Office of the
Ombudsman. 29 A reconciliation is thereby made between the demands of national security and the
requirement of accountability enshrined in the Constitution. 30

What has been said above disposes of petitioners' contention that the anonymous letter-complaint
against them is nothing but a vexatious prosecution. It only remains to say that the general investigation
in the Ombudsman' s office is precisely for the purpose of protecting those against whom a complaint is
filed against hasty, malicious, and oppressive prosecution as much as securing the State from useless
and expensive trials. There may also be benefit resulting from such limited in camera inspection in terms
of increased public confidence that the privilege is not being abused and increased likelihood that no
abuse is in fact occurring.

II.

Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that "in
all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed," while in proceedings before the Office
of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there can be no
objection to this procedure because it is provided in the Constitution itself. In the second place, it is
apparent that in permitting the filing of complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the people which keep them from complaining
against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is
different from the other investigatory and prosecutory agencies of the government because those subject
to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or
dismiss investigations held against them. 31 On the other hand complainants are more often than not poor
and simple folk who cannot afford to hire lawyers. 32

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right
against self-incrimination. It is enough to state that the documents required to be produced in this case
are public records and those to whom the subpoena duces tecum is directed are government officials in
whose possession or custody the documents are. Moreover, if, as petitioners claim the disbursement by
the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they
should object to the examination of the documents by respondent Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed documents
be made personally in camera by the Ombudsman, and with all the safeguards outlined in this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and
Vitug, JJ., concur.

Francisco, J., is on leave.


Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic
Intelligence and Investigation Bureau (EIIB) documents relating to the Personal
Services Funds for the year 1988 and all documentary evidence, including salary
vouchers for the whole plantilla of the EIIB for 1988 be produced before the
Ombudsman over the objections of the EIIB Commissioner on the ground that the
documents contain highly confidential matters, apart from the fact that the expenditures
had been cleared in audit by the Commission on Audit (COA). The reasons relied upon
in the ponencia are a) that the EIIB documents at issue are not classified under COA
(Commission on Audit) Circular No. 88-293, Part V No. 7 which limits such matters
exclusively to expenditures relating to the purchase of information and payment of
rewards; and b) the documents relating to disbursement and expenditures of the EIIB
for personal funds had already been previously examined by the Commission on Audit
when such outlay had been passed upon in audit in the said Office, such that there is no
confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat


the legal mandate of the EIIB as the intelligence arm of the executive branch of
government relating to matters affecting the economy of the nation. As such, EIIB's
functions are related to matters affecting national security. In the performance of its
function in relation with the gathering of intelligence information executive privilege
could as well be invoked by the EIIB, especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a


question as affecting the national security is a policy decision for which this Court has
neither the competence nor the mandate to infringe upon. In the absence of a clear
showing a grave abuse of discretion on the part of the Executive, acting through its
(national security) agencies, I am of the opinion that we cannot interfere with a
determination, properly made, on a question affecting economic security lest we are
prepared to ride roughshod over certain prerogatives of our political branches. In an
area obviously affecting the national security, disclosure of confidential information on
the promptings of some dissatisfied employees would potentially disturb a number of
carefully laid-out operations dependent on secrecy and I am not prepared to do this.
The characterization of the documents as classified information is not a shield for
wrongdoing but a barrier against the burden some requests for information which
necessarily interfere with the proper performance of their duties. To give in, at every
turn, to such requests would be greatly disruptive of governmental functions. More so in
this case, since expenditures of the EIIB for personal funds had already been previously
examined and passed upon in audit by the Commission on Audit. There has been no
allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect
unless we want to encourage unnecessary and tiresome forays and investigations into
government activities which would not only end up nowhere but which would also
disrupt or derail such activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the


functions of the EIIB, as presidential immunity is bestowed by reason of the political
functions of the Chief Executive, as a separate and co-equal branch of government. By
the same parity of reasoning, the disclosure of the EIIB documents required to be
examined by the Ombudsman even in camera proceedings will under the pretext of
ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the
performance by the EIIB of its functions especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to
information on matters of public concern is not absolute. While access to official records
may not be prohibited, it may be regulated. 1 Regulation includes appropriate authority to
determine what documents are of public concern, the manner of access to information contained in such
documents and to withhold information under certain circumstances, particularly, as in this case, those
circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds
allocated to it are properly within the competence of the Commission on Audit, which as the ponencia of
Justice Mendoza finds, has been cleared in audit. The Commission on Audit had adopted, as in the past,
measures to protect "classified information" pertaining to examination of expenditures of intelligence
agencies. In the present case, disclosure of information to any other agency would unnecessarily expose
the covert operations of EIIB, as a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.

Separate Opinions

KAPUNAN, J., dissenting:

The well-written ponencia of Mr. Justice Mendoza would postulate that the Economic Intelligence and
Investigation Bureau (EIIB) documents relating to the Personal Services Funds for the year 1988 and all
documentary evidence, including salary vouchers for the whole plantilla of the EIIB for 1988 be produced
before the Ombudsman over the objections of the EIIB Commissioner on the ground that the documents
contain highly confidential matters, apart from the fact that the expenditures had been cleared in audit by
the Commission on Audit (COA). The reasons relied upon in the ponencia are a) that the EIIB documents
at issue are not classified under COA (Commission on Audit) Circular No. 88-293, Part V No. 7 which
limits such matters exclusively to expenditures relating to the purchase of information and payment of
rewards; and b) the documents relating to disbursement and expenditures of the EIIB for personal funds
had already been previously examined by the Commission on Audit when such outlay had been passed
upon in audit in the said Office, such that there is no confidentiality privilege to protect.

With due respect, I beg to disagree.

Disclosure of the documents as required by the Ombudsman would necessarily defeat the legal mandate
of the EIIB as the intelligence arm of the executive branch of government relating to matters affecting the
economy of the nation. As such, EIIB's functions are related to matters affecting national security. In the
performance of its function in relation with the gathering of intelligence information executive privilege
could as well be invoked by the EIIB, especially in relation to its covert operations.

The determination, by the executive branch, through its appropriate agencies, of a question as affecting
the national security is a policy decision for which this Court has neither the competence nor the mandate
to infringe upon. In the absence of a clear showing a grave abuse of discretion on the part of the
Executive, acting through its (national security) agencies, I am of the opinion that we cannot interfere with
a determination, properly made, on a question affecting economic security lest we are prepared to ride
roughshod over certain prerogatives of our political branches. In an area obviously affecting the national
security, disclosure of confidential information on the promptings of some dissatisfied employees would
potentially disturb a number of carefully laid-out operations dependent on secrecy and I am not prepared
to do this. The characterization of the documents as classified information is not a shield for wrongdoing
but a barrier against the burden some requests for information which necessarily interfere with the proper
performance of their duties. To give in, at every turn, to such requests would be greatly disruptive of
governmental functions. More so in this case, since expenditures of the EIIB for personal funds had
already been previously examined and passed upon in audit by the Commission on Audit. There has
been no allegation of any irregularity in the COA's earlier examination, and in the absence of
substantiated allegations, the previous determination ought to be accorded our respect unless we want to
encourage unnecessary and tiresome forays and investigations into government activities which would
not only end up nowhere but which would also disrupt or derail such activities.

The confidentiality privilege invoked by petitioners attaches in the exercise of the functions of the EIIB, as
presidential immunity is bestowed by reason of the political functions of the Chief Executive, as a
separate and co-equal branch of government. By the same parity of reasoning, the disclosure of the EIIB
documents required to be examined by the Ombudsman even in camera proceedings will under the
pretext of ascertaining the proper disbursements of the EIIB funds will unnecessarily impair the
performance by the EIIB of its functions especially those affecting national security.

The constitutional right allowing disclosure of governmental documents, i.e., the right to information on
matters of public concern is not absolute. While access to official records may not be prohibited, it may be
regulated. 1 Regulation includes appropriate authority to determine what documents are of public concern,
the manner of access to information contained in such documents and to withhold information under
certain circumstances, particularly, as in this case, those circumstances affecting the national security. 2

Besides, as I emphasized earlier, the determination of the legality of EIIB's disbursements of funds
allocated to it are properly within the competence of the Commission on Audit, which as the ponencia of
Justice Mendoza finds, has been cleared in audit. The Commission on Audit had adopted, as in the past,
measures to protect "classified information" pertaining to examination of expenditures of intelligence
agencies. In the present case, disclosure of information to any other agency would unnecessarily expose
the covert operations of EIIB, as a government agency charged with national security functions.

I, therefore, vote to give due course to the petition.


a. Testimonial Privilege
b. Admissions

Constantino vs Heirs of Pedro Constantino Jr.

SECOND DIVISION

G.R. No. 181508 October 2, 2013

OSCAR CONSTANTINO, MAXIMA CONSTANTINO and CASIMIRA MATURINGAN,


Petitioners,
vs.
HEIRS OF PEDRO CONSTANTINO, JR., represented by ASUNCION LAQUINDANUM,
Respondents.

DECISION

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the 31 May 2007 Decision1 of the Court of Appeals in CA-G.R. CV No. 81329, which
reversed the 27 October 2003 Decision2 of the Regional Trial Court (RTC), Branch 18 of
Malolos City, Bulacan, in a complaint for Declaration of Nullity of "Pagmamana sa Labas ng
Hukuman," Tax Declaration Nos. 96-10022-02653 & 1002655, With Prayer for a Writ of
Preliminary Injunction & Damages docketed as Civil Case No. 630-M-99.

The facts

This involves a controversy over a parcel of land claimed to be part of an estate which needed to
be proportionally subdivided among heirs.

Pedro Constantino, Sr., (Pedro Sr.) ancestors of the petitioners and respondents, owned several
parcels of land, one of which is an unregistered parcel of land declared for taxation purposes
under Tax Declaration 208143 consisting of 240 square meters situated at Sta. Monica, Hagonoy,
Bulacan. Pedro, Sr., upon his death, was survived by his six (6) children, namely: 1) PEDRO
CONSTANTINO, JR. (Pedro Jr.), the grandfather of the respondents; 2) ANTONIA
CONSTANTINO, who later died without issue; 3) CLARA CONSTANTINO, who also later
died without issue; 4) BRUNOCONSTANTINO, who was survived by his 6 children including
petitioner Casimira Constantino-Maturingan; 5) EDUARDO CONSTANTINO, who is survived
by his daughter Maura; and 6) SANTIAGO CONSTANTINO, who was survived by his five (5)
children which includes petitioner Oscar Constantino.4
On 17 June 1999, respondents Asuncion Laquindanum (Asuncion)and Josefina Cailipan
(Josefina), great grandchildren of Pedro Sr., in representation of Pedro, Jr. filed a complaint5

against petitioners Oscar Constantino, Maxima Constantino and Casimira Maturingan,


grandchildren of Pedro Sr., for the nullification of a document denominated as "Pagmamana sa
Labas ng Hukuman" dated 10 August 1992,6 Tax Declaration Nos. 96-10022 (02653)7 and 96-
10022 (02655)8 and reinstatement of Tax Declaration No. 208149 in the name of Pedro Sr.

In the said complaint, respondents alleged that sometime in October 1998, petitioners asserted
their claim of ownership over the whole parcel of land (240 sq m) owned by the late Pedro Sr., to
the exclusion of respondents who are occupying a portion thereof. Upon verification,
respondents learned that a Tax Declaration No. 02010-2170-33235 in the name of petitioner
Oscar Constantino and his cousin Maxima Constantino was unlawfully issued, which in effect
canceled Tax Declaration No. 20814 in the name of their ancestor Pedro Sr. The issuance of the
new tax declaration was allegedly due to the execution of a simulated, fabricated and fictitious
document denominated as "Pagmamana sa Labas ng Hukuman," wherein the petitioners
misrepresented themselves as the sole and only heirs of Pedro Sr. It was further alleged that
subsequently, the subject land was divided equally between petitioners Oscar and Maxima
resulting in the issuance of Tax Declaration No. 96-10022-0265310 in the name of Oscar, with an
area of 120sq m and the other half in the name of Maxima covered by Tax Declaration No. 96-
10022-02652.11 The share of Maxima was eventually conveyed to her sister, petitioner Casimira
in whose name a new Tax Declaration No. 96-10022-0265512 was issued.

Thus, respondents sought to annul the "Pagmamana sa Labas ngHukuman" as well as the Tax
Declarations that were issued on the basis of such document.

The petitioners, on the other hand, averred in their Answer With Counterclaim13 that Pedro Sr.,
upon his death, left several parcels of land, namely: 1) a lot with an area of 240 sq m covered by
Tax Declaration No.20814; 2) a lot with an area of 192 sq m also situated at Sta.
Monica,Hagonoy, Bulacan, previously covered by Tax Declaration No. 9534; and 3)an
agricultural land with an area of Four (4) hectares, more or less. The petitioners claimed that the
document "Pagmamana sa Labas ng Hukuman" pertaining to the 240 sq m lot was perfectly valid
and legal, as it was a product of mutual and voluntary agreement between and among the
descendants of the deceased Pedro Sr.

Further, petitioners alleged that the respondents have no cause of action against them considering
that the respondents lawful share over the estate of Pedro Sr., had already been transferred to
them as evidenced by the Deed of Extrajudicial Settlement with Waiver14 dated 5 December
1968,executed by Angelo Constantino, Maria Constantino (mother of respondent Asuncion),
Arcadio Constantino and Mercedes Constantino, all heirs of Pedro Jr. In the said deed,
respondents adjudicated unto themselves to the exclusion of other heirs, the parcel of land with
an area of 192 sq m by misrepresenting that they were "the only legitimate heirs of Pedro Sr.
Thus, petitioners claimed that in the manner similar to the assailed "Pagmamana sa Labas ng
Hukuman," they asserted their rights and ownership over the subject 240 sq m lot without
damage to the respondents.
In essence, petitioners position was that the Deed of Extrajudicial Settlement with Waiver which
led to the issuance of Tax Declaration No.9534 was acquiesced in by the other heirs of Pedro Sr.,
including the petitioners, on the understanding that the respondent heirs of Pedro Jr. would no
longer share and participate in the settlement and partition of the remaining lot covered by the "

Pagmamana sa Labas ng Hukuman."

On 15 August 2000, pre-trial conference15 was conducted wherein the parties entered into
stipulations and admissions as well as identification of the issues to be litigated. Thereupon, trial
on the merits ensued.

On 27 October 2003, the RTC rendered a Decision16 in favor of the respondents finding that:

As a result of execution of "Extrajudicial Settlement with Waiver" dated December 5, 1968


(Exh. "2") executed by the heirs of Pedro Constantino, Jr., a son of Pedro Constantino, Sr. and
the subsequent execution of another deed denominated as "Pagmamana sa Labas ng Hukuman"
dated August 10, 1992 (Exh. "E") executed by the heirs of Santiago and Bruno Constantino, also
other sons of Pedro Constantino, Sr., to the exclusion of the other heirs, namely, those of
ANTONIA, CLARA, and EDUARDO CONSTANTINO, both plaintiffs and defendants acted
equally at fault. They are in pari delicto, whereby the law leaves them as they are and denies
recovery by either one of them. (See:Yu Bun Guan v. Ong, 367 SCRA 559). Parties who are
equally guilty cannot complain against each other. (Sarmiento v. Salud, 45 SCRA 213.)

Supplementing the law on the matter, that is, the provision of Article 19 of the New Civil Code
whereby every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith, is the legal maxim that
"he who comes to court to demand equity must come with clean hands." (LBC Express, Inc. v.
Court of Appeals, 236 SCRA 602).

Although, plaintiffs-heirs of Pedro Constantino, Jr., including Asuncion Laquindanum and


Josefina Cailipan, are not parties or signatories to the "Extrajudicial Settlement with Waiver"
dated December 5, 1968, they are successors-in-interest of Pedro Constantino, Jr. They
areconsidered "privies" to said deed, and are bound by said extrajudicial settlement. (See:
Cabresos v. Tiro, 166 SCRA 400). In other words, they are "PRIVIES IN ESTATE". (Correa v.
Pascual, 99 Phil. 696, 703).

Consequently, plaintiffs are now estopped from claiming otherwise. (See: PNB v. CA, 94 SCRA
357). They are estopped to share in the real property subject matter of this case. In fine, they are
not entitled to the reliefs prayed for.1wphi1 (Communication Materials & Design, Inc. v. CA,
260 SCRA 673).

With respect to alleged damages claimed by plaintiffs against defendants in their Complaint and
counterclaim for damages by defendants against plaintiffs in their Answer, both claims are
hereby dismissed for lack of valid factual and legal foundations.

Disposition
WHEREFORE, in view of the foregoing premises and disquisition, the deed denominated as
"Pagmamana sa Labas ng Hukuman" of August10, 1992 and Tax Declaration No. 96-10022-
02653 in the name of Oscar Constantino and Tax Declaration No. 96-10022-02655 in the name
of Casimira C. Maturingan (from Maxima Constantino to Casimira C. Maturingan) stand.
Plaintiffs Complaint for nullification thereof with damages is hereby DISMISSED.17

Not convinced, the respondents appealed the afore quoted decision to the Court of Appeals (CA)
raising, among others, the erroneous application by the trial court of the doctrine of "in pari
delicto" in declaring the validity of the document "Pagmamana sa Labas ng Hukuman."

In its 31 May 2007 Decision,18 the CA ruled in favor of the respondents heirs of Pedro, Jr.,
declaring that the "Extrajudicial Settlement with Waiver" dated 5 December 1968 they executed
covering the 192 sq mlot actually belongs to Pedro Jr., hence, not part of the estate of Pedro Sr.
The CA rationated in this wise:

The 192 square meters lot which was adjudicated in the "Extrajudicial Settlement with Waiver"
dated 5 December 1968 among the heirs of Pedro Jr. namely Angelo, Maria, Arcadio and
Mercedes is a property belonging to Pedro Jr. although there is a typographical error in that the
name of Pedro Jr. was inadvertently typed only as Pedro Constantino. It is clear from the reading
of the document that a typographical error was committed because the four (4) children of
PedroJr. by Felipa dela Cruz were specifically identified. Further, during the presentation of
evidence of the plaintiffs-appellants, it was rebutted that Pedro Sr. had six (6) legitimate children
namely: Pedro Jr., Antonia, Clara, Santiago, Bruno and Eduardo19 and Pedro Jr. had four (4).20

Thus, the CA went on to state that the respondents, heirs of Pedro Jr., did not adjudicate the 192
sq m lot unto themselves to the exclusion of all the other heirs of Pedro Sr. Rather, the
adjudication in the document entitled "Extrajudicial Settlement with Waiver dated 5 December
1968 pertains to a different property and is valid absent any evidence to the contrary. Hence, it is
erroneous for the trial court to declare the parties in pari delicto.

The Issue

The petitioners now question the said ruling assigning as error, among others, the failure of the
CA to appreciate the existence of misrepresentation in both documents, thereby ignoring the
propriety of the application of the in pari delicto doctrine. Likewise assailed is the erroneous
disregard by the CA of stipulations and admissions during the pre-trial conference on which the
application of the doctrine of in pari delicto was based.

Our Ruling

Latin for "in equal fault," in pari delicto connotes that two or more people are at fault or are
guilty of a crime. Neither courts of law nor equity will interpose to grant relief to the parties,
when an illegal agreement has been made, and both parties stand in pari delicto.21 Under the pari
delicto doctrine, the parties to a controversy are equally culpable or guilty, they shall have no
action against each other, and it shall leave the parties where it finds them. This doctrine finds
expression in the maxims "ex dolo malo nonoritur actio" and "in pari delicto potior est conditio
defendentis."22

When circumstances are presented for the application of such doctrine, courts will take a hands
off stance in interpreting the contract for or against any of the parties. This is illustrated in the
case of Packaging Products Corporation v. NLRC,23 where this Court pronounced that:

This Court cannot give positive relief to either petitioner or respondent because we are asked to
interpret and enforce an illegal and immoral arrangement. (See Articles 1409, 1411, and 1412 of
the Civil Code). Kickback arrangements in the purchase of raw materials, equipment, supplies
and other needs of offices, manufacturers, and industrialists are so widespread and pervasive that
nobody seems to know how to eliminate them. x x x.

Both the petitioners and the private respondent are in pari delicto. Neither one may expect
positive relief from courts of justice in the interpretation of their contract. The courts will leave
them as they were at the time the case was filed.24

As a doctrine in civil law, the rule on pari delicto is principally governed by Articles 1411 and
1412 of the Civil Code, which state that:

Article 1411. When the nullity proceeds from the illegality of the cause or object of the contract,
and the act constitutes a criminal offense, both parties being in pari delicto, they shall have no
action against each other, and both shall be prosecuted.

xxx xxx

Article 1412. If the act in which the unlawful or forbidden cause consists does not constitute a
criminal offense, the following rules shall be observed:

xxx xxx

1. When the fault is on the part of both contracting parties, neither may recover what he has
given by virtue of the contract, or demand the performance of the others undertaking;

xxx xxx.

The petition at bench does not speak of an illegal cause of contract constituting a criminal
offense under Article 1411. Neither can it be said that Article 1412 finds application although
such provision which is part of Title II, Book IV of the Civil Code speaks of contracts in general,
as well as contracts which are null and void ab initio pursuant to Article 1409 of the Civil Code
such as the subject contracts, which as claimed, are violative of the mandatory provision of the
law on legitimes.

We do not dispute that herein parties, through the Deeds they separately executed deprived each
other of rightful shares in the two lots subject of the separate contracts that is, if the two (2)
parcels of land subject matter thereof, form part of the estate of the late Pedro Sr.
It is asserted by the petitioners that their execution in 1992 of the contract denominated as
"Pagmamana sa Labas ng Hukuman" which excluded other heirs of Pedro Sr., was with an
underlying agreement with the other heirs including Maria Constantino, daughter of Pedro Jr.
and grandmother of respondents.25 The agreement was for the other heirs to recognize the 192
square meters lot subject matter of the "Extrajudicial Settlement with Waiver" executed in 1968
as the share of the heirs of Pedro Sr. in the estate of Pedro Sr., Petitioners respected such
agreement, as in fact, Maria Laquindanum and that of her heirs, herein respondents, were not
disturbed in their possession or ownership over the said parcel of land; thus, the heirs of Pedro Jr.
were said to have acquiesced26 to the "Pagmamana sa Labas ng Hukuman" and the underlying
agreement and therefore they have no recourse or reason to question it taking cue from the
doctrine of in paridelicto. This was the basis of the trial courts findings that respondents are now
estopped from claiming otherwise.27

We find that the trial court erroneously applied the doctrine.

This is not to say, however, that the CA was correct in upholding the validity of the contract
denominated as "Pagmamana sa Labas ng Hukuman." The CA decision being, likewise, based on
pari delicto, is also incorrect.

Finding the inapplicability of the in pari delicto doctrine, We find occasion to stress that Article
1412 of the Civil Code that breathes life to the doctrine speaks of the rights and obligations of
the parties to the contract with an illegal cause or object which does not constitute a criminal
offense. It applies to contracts which are void for illegality of subject matter and not to contracts
rendered void for being simulated,28 or those in which the parties do not really intend to be
bound thereby. Specifically, in pari delicto situations involve the parties in one contract who are
both at fault, such that neither can recover nor have any action against each other.

In this case, there are two Deeds of extrajudicial assignments unto the signatories of the portions
of the estate of an ancestor common to them and another set of signatories likewise assigning
unto themselves portions of the same estate. The separate Deeds came into being out of an
identical intention of the signatories in both to exclude their co-heirs of their rightful share in the
entire estate of Pedro Sr. It was, in reality, an assignment of specific portions of the estate of
Pedro Sr., without resorting to a lawful partition of estate as both sets of heirs intended to
exclude the other heirs.

Clearly, the principle of in pari delicto cannot be applied. The inapplicability is dictated not only
by the fact that two deeds, not one contract, are involved, but because of the more important
reason that such an application would result in the validation of both deeds instead of their
nullification as necessitated by their illegality. It must be emphasized that the underlying
agreement resulting in the execution of the deeds is nothing but a void agreement. Article 1409
of the Civil Code provides that:

ART. 1409. The following contracts are in existent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law; morals, good customs, public order
or public policy;
xxx xxx xxx

Corollarily, given the character and nature of the deeds as being void and in existent, it has, as a
consequence, of no force and effect from the beginning, as if it had never been entered into and
which cannot be validated either by time or ratification.29

That said, we cannot give credence to the contention of respondents that no fault can be
attributed to them or that they are free from the effects of violation of any laws arising from the
supposed unlawful agreement entered into between Maria Laquindanum, their predecessor-in-
interest, and the other heirs, including petitioners herein, based on the fact that they are not
signatories to said agreement, thus, the lack of any binding effect to them. Respondents argued
and set forth as an issue during the trial that they were not signatories to any of the contract or
privies to such an arrangement. It is not disputed, however, that respondents are successors-in-
interest of Maria Laquindanum, one of the signatories in the Extrajudicial Settlement with
Waiver who was also allegedly in agreement with the petitioners.

On this note, We agree with the trial court that respondents are "privies" to Maria Laquindanum.
By the term "privies" is meant those between whom an action is deemed binding although they
are not literally parties to the said action.30 This Court, in Correa v. Pascual,31 had occasion to
explain that "privity in estate denotes the privity between assignor and assignee, donor and
donee, grantor and grantee, joint tenant for life and remainderman or reversioner and their
respective assignees, vendor by deed of warranty and a remote vendee or assignee. A privy in
estate is one, it has been said, who derives his title to the property in question by purchase; one
who takes by conveyance." In fine, respondents, as successors-in-interest, derive their right from
and are in the same position as their predecessor in whose shoes they now stand. As such
successors, respondents situation is analogous to that of a transferee pendente lite illustrated in
Santiago Land Development Corporation v. Court of Appeals,32 reiterating Fetalino v. Sanz33
where this Court held:

As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and
is bound by the proceedings had in the case before the property was transferred to him. He is a
proper, but not an indispensable, party as he would, in any event, have been bound by the
judgment against his predecessor.34

Thus, any condition attached to the property or any agreement precipitating the execution of the
Deed of Extrajudicial Settlement with Waiver which was binding upon Maria Laquindanum is
applicable to respondents who merely succeeded Maria.

This notwithstanding, it must however be shown that the Deed of Extrajudicial Settlement with
Waiver, referred to a property owned by Pedro Sr. There is such basis from the facts of this case.

The records show that apart from respondent Asuncion Laquindanumss statement that the parcel
of land subject matter of the Deed of Extrajudicial Settlement with Waiver is not part of the
estate of Pedro Sr., their common ancestor, no other evidence was offered to support it. The CA
in giving credence to the respondents claim, merely relied on the alleged typographical error in
the Deed. The basis for the CAs conclusion was the inclusion of the wife of Pedro Jr. and that of
their children, which the CA considered as proof that the property was owned by Pedro Jr. and
not part of the estate of Pedro Sr. As pointed out by the petitioners, the mention of the names of
the children of Pedro Jr. in the Extrajudicial Settlement is not proof that the subject of the deed is
the property of Pedro Jr. Meant to exclude all the other heirs of Pedro Sr., only the children of
Pedro Jr. appeared in the Extrajudicial Settlement as heirs.

Weak as the reasoning is, the CA actually contradicted the admissions made no less by the
respondents during the pre-trial conference where they stipulated that the land covered by Tax
Declaration No. 9534 consisting of 192 sq. m belongs to Pedro Sr.35

A portion of the admission and stipulations made by both parties during the pre-trial is hereunder
quoted, thus:

Respondents admissions:

"1. That the land covered by Tax Declaration No. 9534 previously owned by Pedro Constantino,
Sr. was transferred to Maria Constantino under Tax Declaration No. 9535; (highlighting ours)

1. The existence of Extrajudicial Settlement with Waiver per Doc. No.319, Page No. 44, Book
No. 11, Series of 1968 by Notary Public Romerico Flores, Jr."

Clearly, the above stipulation is an admission against respondents interest of the fact of
ownership by Pedro Sr. of the 192 sq m lot covered by Tax Declaration No. 9534, which was
transferred to respondents mother, the daughter of Pedro Jr. Such that, in one of the issues
submitted to be resolved by the trial court, this was included: "Whether or not the "Deed of
Extrajudicial Settlement with Waiver" is enforceable against the plaintiffs, thus curing the legal
infirmities, if any, of the "Pagmamana sa Labas ng Hukuman"36 an issue earlier mentioned.

Judicial admissions are legally binding on the party making the admissions. Pre-trial admission
in civil cases is one of the instances of judicial admissions explicitly provided for under Section
7, Rule 18 of the Rules of Court, which mandates that the contents of the pre-trial order shall
control the subsequent course of the action, thereby, defining and limiting the issues to be tried.
In Bayas, et. al. v. Sandiganbayan, et. al.,37 this Court emphasized that:

Once the stipulations are reduced into writing and signed by the parties and their counsels, they
become binding on the parties who made them. They become judicial admissions of the fact or
facts stipulated.38 Even if placed at a disadvantageous position, a party may not be allowed to
rescind them unilaterally, it must assume the consequences of the disadvantage.39 (Highlighting
ours)

Moreover, in Alfelor v. Halasan,40 this Court declared that:

A party who judicially admits a fact cannot later challenge the fact as judicial admissions are a
waiver of proof; production of evidence is dispensed with. A judicial admission also removes an
admitted fact from the field of controversy. Consequently, an admission made in the pleadings
cannot be controverted by the party making such admission and are conclusive as to such party,
and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is
interposed by the party or not. The allegations, statements or admissions contained in a pleading
are conclusive as against the pleader. A party cannot subsequently take a position contrary of or
inconsistent with what was pleaded.41 (Citations omitted)

We are aware that the last paragraph of Section 7, Rule 18 of the Rules of Court serves as a
caveat for the rule of conclusiveness of judicial admissions for, in the interest of justice, issues
that may arise in the course of the proceedings but which may not have been taken up in the pre-
trial can still be taken up.

Section 7, Rule 18 of the Rules of Court reads:

Section 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded.1awp++i1


Upon the termination thereof, the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the amendments allowed to the
pleadings, and the agreements or admissions made by the parties as to any of the matters
considered. Should the action proceed to trial, the order shall, explicitly define and limit the
issues to be tried. The contents of the order shall control the subsequent course of the action,
unless modified before trial to prevent injustice.

In addition, Section 4 of Rule 129 of the Rules of Court, provides that:

An admission, verbal or written, made by a party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made.

As contemplated in the aforementioned provision of the Rules of Court, the general rule
regarding conclusiveness of judicial admission upon the party making it and the dispensation of
proof admits of two exceptions: 1) when it is shown that the admission was made through
palpable mistake, and 2) when it is shown that no such admission was in fact made. The latter
exception allows one to contradict an admission by denying that he made such an admission.42

However, respondents failed to refute the earlier admission/stipulation before and during the
trial. While denying ownership by Pedro Sr. of the 192 sq m lot, respondent Asuncion
Laquindanum, when placed on the stand, offered a vague explanation as to how such parcel of
land was acquired by Pedro Jr. A portion of her testimony43 is hereto reproduced as follows:

"ATTY. DOMINGO:

Q: Do you know if as part of the estate of the late Pedro Constantino, Sr. is another parcel of land
also situated at Sta. Maria, Hagonoy, Bulacan with an area of 192 square meters?

A: It is not owned by Pedro Constantino, Sr., sir. It is our property owned by Pedro Constantino,
Jr. that was inherited by my mother Maria Constantino.
Q: And do you know how Pedro Constantino, Jr. acquired that parcel of land, the one that you
mentioned a while ago?

A: Kinagisnan ko na po yong lupang yon pagkabata pa na yon e amin." (Highlighting ours)

The above assertion of denial is simply a self-serving declarationunsupported by evidence. This


renders conclusive the stipulations made during the pre-trial conference. Consequently,
respondents are bound by the infirmities of the contract on which they based their right over the
property subject matter thereof. Considering that the infirmities in the two deeds relate to
exclusion of heirs, a circumvention of an heirs right to his or her legitime, it is apt to reiterate
our ruling in Neri v. Heirs of Hadji Yusop Uy,44 disposing that:

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale
in favour of spouses Uy, all the heirs of Annunciation should have participated. Considering that
Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not
properly represented therein, the settlement was not valid and binding upon them and
consequently, a total nullity. (Highlighting ours)

Further highlighting the effect of excluding the heirs in the settlement of estate, the case of
Segura v. Segura,45 elucidated thus:

It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and
void as far as the plaintiffs were concerned. The rule covers only partition. The partition in the
present case was invalid because it excluded six of the nine heirs who were entitled to equal
shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding
upon any person who has not participated therein or had no notice thereof." As the partition was
a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold
that their right to challenge the partition had prescribed after two years from its execution x x x.

In light of the foregoing, while both parties acted in violation of the law on legitimes, the pari
delicto rule, expressed in the maxims "Ex dolo malo non oritur action" and "in pari delicto potior
est condition defendentis," which refuses remedy to either party to an illegal agreement and
leaves them where they are, does not apply in this case. (Underline supplied)46 As held in De
Leon v. CA:47

In the ultimate analysis, therefore, both acted in violation of laws. However, the pari delicto rule
expressed in the maxims "Ex dolo malo non oritur action" and "In pari delicto potior est
condition defendentis," which refuses remedy to either party to an illegal agreement and leaves
them where they are does not apply in this case.

xxx xxx xxx

Since the Letter-Agreement was repudiated before the purpose has been accomplished and to
adhere to the pari delicto rule in this case is to put a premium to the circumvention or the laws,
positive relief should be granted to Macaria. Justice would be served by allowing her to be
placed in the position in which she was before the transaction was entered into.
Accordingly, in order not to put a premium to the circumvention or the laws as contemplated by
the parties in the instant case, we must declare both contracts as void. Indeed, any circumvention
of the law cannot be48 countenanced.

WHEREFORE, the 31 May 2007 Decision of the Court of Appeals in CA-G.R. CV No. 81329 is
hereby REVERSED. The Pagmamana sa Lahas ng Hukuman and Extrajudicial Settlement with
Waiver are hereby declared void without prejudice to the partition of the estate of Pedro
Constantino Sr. with the full participation of all the latter's heirs.

SO ORDERED.

JOSE PORTUGAL PEREZ


Associate Justice

People vs Gandia

EN BANC

[G.R. No. 146111. February 23, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ROLENDO GAUDIA @ LENDOY or DODO,


appellant.

DECISION

PUNO, J.:

There can be no greater violation of a persons right to feel safe and secure than the crime of rape.
When one commits such a horrible act on another, he degrades not only that persons body; more
importantly, he defiles that persons mind. When the victim is a little child, the act and the
perpetrator himself assume a bestiality beyond the comprehension of normal human beings. Yet,
the law must apply equally upon saints and sinners alike, even to the most salacious ruffian.

Before us is the Decision51[1] dated 10 July 2000 of Branch 19 of the Regional Trial Court of
Digos, Davao del Sur, finding appellant Rolendo Gaudia52[2] guilty of the crime of rape, meting
upon him the penalty of death, and ordering him to pay to private complainant Remelyn Loyola
the amounts of fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos
(P30,000.00) as exemplary damages, and costs of suit.
The Information filed against the accused-appellant reads as follows:

That on or about March 24, 1997 at about 6:30 oclock in the evening, in the Municipality of
Hagonoy, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, by means of force and intimidation, did, then and there
willfully, unlawfully and feloniously have carnal knowledge with Remelyn Loyola, a minor,
against her will to her damage and prejudice.

The prosecution presented Remelyns mother, Amalia Loyola, as its primary witness. Amalia
testified that on 24 March 1997, she left her two children Remelyn (3 1/2 years old)53[3]and
Kimberly (1 year old)54[4] at their house in Clib, Hagonoy, Davao del Sur to gather pigs food at
Bulatukan. At the time, her husband was working in Tulunan, South Cotabato. At about 4:00 in
the afternoon, Amalia returned home and could not find Remelyn. She went to fetch water and
proceeded to a neighbor to ask about the whereabouts of Remelyn. Nobody could provide her
any information. On her way home, she shouted and called out Remelyns name. At about 6:00
p.m., Amalia heard Remelyn calling out to her, Ma, I am here, from a grove of ipil-ipil trees.55[5]
Amalia rushed toward the place, but was met by Remelyn at the mango trees, some thirty (30)
meters from their house.56[6] She found Remelyn crying, naked, nagbakaang (walking with her
legs spread apart) and with fresh and dried blood on her body. Ipil-ipil leaves clung to her
forehead. Blood was oozing from her private organ. Amalia brought Remelyn home and washed
her. Upon closer inspection, she found a whitish mucus-like substance coming from Remelyns
private organ.57[7]

The following day, 2 March 1997, Amalia brought Remelyn to the house of a certain Tiya
Coring, a quack doctor, for treatment. Among the people present in the premises were the
relatives and parents of the appellant.58[8] The quack doctor found both dried blood and fresh
blood oozing in Remelyns vagina, and told Amalia, Hoy! Amalia, your daughter was being (sic)
raped.59[9] At about 10:00 a.m., Tulon Mik, a neighbor, came and informed Amalia that he had
seen the appellant pass by her house and take Remelyn.60[10] At this point, the parents of
appellant told Amalia, Mal, let us talk about this matter, we will just settle this, we are willing to
pay the amount of P15,000.00, for the crime that my son committed.61[11] Police officers came
and brought Amalia, Remelyn and two barangay officials (kagawads) to the police precinct of
Hagonoy for investigation. Amalias statement was taken.62[12]

On 25 March 1997, Amalia brought Remelyn to the Hagonoy Health Center in Davao del Sur.
Dr. Patricio Hernane, the municipal health officer,63[13] conducted a genital examination of
Remelyn, and made the following findings:

GENITAL EXAMINATION:

Absence of Pubic Hair (Tanner Stage I). No contusions are noted on the external genitalia. Dried
blood are (sic) noted on the labia minora. Fresh hymenal lacerations are noted at 12, 3, 6, 10
oclock (sic) are noted with fresh vaginal laceration noted at the posterior commissure but not
extending to the perineum. No lacerations were noted at the anal opening.

Speculum examination is not done because even exposure of the labia minora make the child cry.
(sic)

CONCLUSION: Physical virginity lost.64[14]

The doctor opined that the lacerations could have been caused by the insertion of a foreign
object, such as the penis of a man.65[15]

On 26 March 1997, Amalia executed her affidavit complaint.66[16] Amalia stated therein that
Remelyn had told her Buang Lendoy iya kong lugos.67[17] (Meaning crazy lendoy he forced me in
the Visayan dialect.) Amalia confirmed in her testimony that two weeks after the incident,
Remelyn told her, Ma, Lendoy is crazy, she (sic) brought me to the ipil-ipil trees.68[18]

The prosecution also presented Tulon Mik, Remelyns neighbor and a barangay kagawad in their
area. Mik testified that on 24 March 1997, at about 4:00 p.m., he and his wife were on their way
home after registering at the COMELEC office. They were in a hurry as their child was running
a fever. Mik saw appellant carrying a small girl in his arms.69[19] He identified the little girl as
Remelyn Loyola, daughter of Amalia Loyola. Appellant and Remelyn were on their way toward
the ipil-ipil trees.70[20]

The next morning, 25 March 1997, at about 7:00 a.m., a neighbor informed Mik that Remelyn
had been raped. He proceeded to the house of the quack doctor where Amalia brought Remelyn
for examination. Amalia confirmed to Mik that Remelyn had been raped. Mik told Amalia that
appellant committed the crime. Mik then informed Barangay Official Rodrigo Malud71[21] and
the other tanods of the incident. They were instructed to locate the appellant. They passed to the
police the information that appellant was in Barangay Mahayahay. The policemen came and took
appellant for investigation. 72[22]

The appellant, ROLENDO GAUDIA, interposed the defense of alibi. He averred that on 24
March 1997, at about 4:00 p.m., he went to the Barangay Center to register at the COMELEC for
the National Elections. With him was Totong Loyola, the brother-in-law of Amalia Loyola. They
finished at 5:00 p.m., left and repaired to the house of Catalina Cabano, appellants aunt, to ask
for vinegar for their kinilaw (a dish composed of raw fish steeped in vinegar). They found
Daylen Cabano, the small grandchild of Catalina, alone at her house. Daylen was crying, hence,
they brought her with them as they proceeded to the place where Catalina was collecting tuba
(fermented coconut wine). It was appellant who carried Daylen.73[23] They reached Catalinas
place after 5:00 p.m. Thereafter, they went to the house of appellant. Dodo Malon and appellants
parents were in the house. At around 9:00 p.m., Totong and Dodo Malon left, after partaking of
the kinilaw. Appellant stayed home. The following morning (25 March 1997), appellant and
Dodo Malon went to the river to fish. At about 12:00 noon, appellant repaired to the house of his
aunt, Victoria Gayod, in Mahayahay to drink tuba. He was located by the police and
investigated.74[24] He claimed that it was Daylen and not the victim Remelyn whom he was
carrying.

As corroborative witness, appellant presented Alex Totong Loyola. Totong testified that on 24
March 1997, at about 4:00 p.m., they registered as voters in the barangay. After registering, they
went home to appellants house, but again left to get vinegar from his aunt Catalina Cabano, for
their kinilaw. In Catalinas house, they found her drunk husband, her 10-year old daughter, and
her 3-year old grandchild Daylen.75[25] Catalinas daughter directed them to the place where she
was gathering tuba. As Daylen was crying, appellant carried her on their way to Catalina. It was
then about 4:00 p.m. After Catalina finished gathering tuba, the four of them appellant, Totong,
Catalina and Daylen, left together and repaired to Catalinas house for the vinegar. Appellant and
Totong returned to appellants house where they spent the night.76[26] Totong woke up at 6:00 a.m.
the following day, and left appellants house. Totong came to know of appellants arrest the
following day.77[27]

Catalina Cabano also corroborated appellants story. She relates that on 24 March 1997, she was
gathering tuba, at a place around 2 kilometers from her house. She left Maritess, her youngest
child and Daylen, her grandchild, at her house.78[28] At about 5:30 p.m., appellant and Totong
arrived. Appellant was carrying Daylen. They waited for Catalina to finish gathering tuba until
6:00 p.m. Appellant and Totong went to the formers house, had a drinking spree, and then parted
ways at about 6:30 p.m. That night, according to Catalina, she talked to Tulon Mik at the
premises near the house. Mik was looking for Remelyn. At that time, appellant was already at
the house of Catalinas younger sister, which is located across the river, about 4 kilometers
away.79[29]

After trial, the trial court found that there was sufficient circumstantial evidence to convict
appellant for the crime of rape with the qualifying circumstance that the victim was below seven
years of age. Appellant was sentenced to death and ordered to indemnify the victim the sums of
fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as
exemplary damages, and to pay the costs of suit.

In his Brief80[30] to the Court, appellant assigned the following errors in the judgment of the trial
court:

I.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT, ROLANDO


(sic) GAUDIA DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

II.

EVEN GRANTING WITHOUT ADMITTING THAT ACCUSED-APPELLANT IS GUILTY


OF THE CRIME CHARGED, THE TRIAL COURT STILL ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF THE PROSECUTION TO
STATE WITH CERTAINTY THE QUALIFYING CIRCUMSTANCE OF AGE IN THE
INFORMATION.
We convict appellant for simple rape, and not for qualified rape.

Under Rule 133, Section 4 of the Revised Rules of Court, conviction may be based on
circumstantial evidence provided three requisites concur: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
The ruling case law is that for circumstantial evidence to be sufficient to support a conviction, all
circumstances must be consistent with each other, consistent with the hypothesis that the accused
is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every
other rational hypothesis except that of guilt.81[31]

The first circumstantial evidence against the appellant is the testimony of prosecution witness
Tulon Mik that at 4:00 p.m. on 24 March 1997, he saw him carrying Remelyn toward the
direction of the ipil-ipil grove, some 130 meters from her house.82[32] As a neighbor and relative
of Remelyns stepfather, Mik had sufficient familiarity with the child Remelyn. The possibility
that he could have been mistaken in identifying the victim is nil.

The second circumstantial evidence against the appellant is Amalias testimony that Remelyn
emerged naked from the same ipil-ipil grove, with ipil-ipil leaves clinging to her forehead.
Remelyn was crying and walking with her legs spread far apart. Remelyns private organ was
bleeding and excreting a white mucus-like substance.83[33]

The third circumstantial evidence against appellant is Remelyns statement to her mother that it
was appellant who had brought her to the ipil-ipil grove84[34] and forced her to do something
against her will.85[35]

There is no question that Remelyn was violated. After examining Remelyn, Dr. Patricio
Hernane, the Municipal Health Officer of Hagonoy, found her to have a broken hymen, as well
as fresh vaginal lacerations.

From these, the culpability of the appellant can be inferred with moral certainty. All the
aforementioned circumstances have been indubitably proven, both by the testimonial and
documentary evidence presented by the prosecution, and by the inability of the appellant to
discredit their veracity.

The attempt of appellant to discredit the circumstantial evidence against him is futile. Appellant
contends, first, that Tulon Miks testimony is weak, on the ground that Mik is a relative of the
husband of Amalia.86[36] He also questions the credibility of Mik because of his failure to
confront appellant when he saw him carrying Remelyn. Neither did Mik inform Amalia about
what he saw when Amalia was looking for Remelyn. Appellant insists that it was Daylen whom
he carried and not Remelyn. Second, he stresses the fact that Remelyn did not make any
categorical statement that he sexually molested her. Third, he maintains that the accusation of
flight against him is false. Fourth, he avers that the offer of compromise by his parents as
tendered to Amalia Loyola should not be taken against him,87[37] while the offer of compromise
he allegedly made to Amalias husband, as relayed by Amalia in her testimony, should be
excluded as evidence for being hearsay.88[38] Finally, he submits that inconsistencies in the
testimony of Alex Loyola and Cabano should not be counted against him on the ground that any
finding of guilt must rest on the strength of the prosecutions evidence.

We reject appellants arguments.

First, appellants attempt to discredit the testimony of Mik cannot succeed. It is true that Mik is a
relative by affinity of Amalia Loyola. It is hoary jurisprudence, however, that mere relationship
to one of the parties, without a showing of any other improper motive, is not sufficient basis to
impair the credibility of the witness.89[39] In the case at bar, appellant cannot impute any ill
motive for Mik to testify adversely against him.

Appellant questions the failure of Mik to challenge him why he was carrying Remelyn. Also, he
assails Mik for failing to inform Amalia Loyola of such a sight. Mik had an explanation for the
inadvertence. He said his own child was down with a fever, and he and his wife were hurrying
home.90[40] For this same reason, he revealed the fact that he saw appellant carrying Remelyn
toward the ipil-ipil grove only when he learned of Remelyns fate. But thereafter, he lost no time
in reporting the matter to the barangay chairman.91[41] As a barangay kagawad, he also assisted in
the pursuit and arrest of appellant at Barangay Mahayahay.92[42] These subsequent actions
strengthen Miks credibility.

The trial court accorded more credence to Miks narration of the events over the testimonies of
Cabano and Loyola. It is a cornerstone of our jurisprudence that the trial judge's evaluation of the
testimony of a witness and its factual findings are accorded not only the highest respect, but also
finality, unless some weighty circumstance has been ignored or misunderstood which could alter
the result of the judgment rendered. In the case at bar, there is no irregularity in the assessment of
evidence by the lower court. It granted utmost credibility to Miks testimony. Given the direct
opportunity to observe the witness on the stand, the trial judge was in a vantage position to assess
his demeanor and determine if he was telling the truth or not.93[43] The trial court found Miks
testimony more worthy of credence over those of Catalina and Loyola. We have no reason to
reverse its findings.

Next, appellant tried to capitalize on the fact that Remelyn never made any statement that he
sexually molested her. This is a specious argument. Remelyn had told her mother, Crazy Lendoy
forced me.94[44] Remelyn was 3 1/2 years old at the time. At such an infantile age, she could not
be expected to have a comprehension of the concept of rape. Studies show that children,
particularly very young children, make the perfect victims. They naturally follow the authority of
adults as the socialization process teaches children that adults are to be respected. The childs age
and developmental level will govern how much she comprehends about the abuse and therefore
how much it affects her. If the child is too young to understand what has happened to her, the
effects will be minimized because she has no comprehension of the consequences. Certainly,
children have more problems in providing accounts of events because they do not understand
everything they experience. They do not have enough life experiences from which to draw upon
in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited
vocabulary.95[45] The fact that Remelyn called appellant Buang or crazy shows that he did
something which she knew was not right or proper. By saying iya kong lugos, Remelyn clearly
conveyed that he forced her to do something bad. With her limited comprehension, the child
could not have a perfect way of relating that she had been sexually abused. Finally, it must also
be considered that there is no actual counterpart for the word rape in Visayan parlance.

Appellants charge that the trial court erred when it ruled that he fled arrest, even if correct, is not
pivotal to his guilt. There are enough pieces of circumstantial evidence to convict him. Neither
will it affect the penalty or the award of damages rendered against him.

Similarly, appellants charge that the offers of compromise allegedly made by the parents of the
appellant to Amalia, and by the appellant himself to Amalias husband should not have been
taken against him by the trial court, even if sustained, will not exculpate him. To be sure, the
offer of compromise allegedly made by appellant to Amalia Loyolas husband is hearsay
evidence, and of no probative value. It was only Amalia who testified as to the alleged offer,96[46]
and she was not a party to the conversation which allegedly transpired at the Hagonoy Municipal
Jail. A witness can only testify on facts which are based on his personal knowledge or
perception.97[47] The offer of compromise allegedly made by the appellants parents to Amalia
may have been the subject of testimony98[48] of Amalia. However, following the principle of res
inter alios acta alteri nocere non debet,99[49] the actions of his parents cannot prejudice the
appellant, since he was not a party to the said conversation, nor was it shown that he was privy to
the offer of compromise made by them to the mother of the victim. They cannot be considered as
evidence against appellant but we reiterate that these errors are not enough to reverse the
conviction of the appellant.

Appellants defense hardly impresses. It is interesting to note that appellant and his witnesses
claim that it was at around 5:00 p.m. when appellant carried the child Daylen toward her
grandmother Catalina at the place where she was gathering tuba. Mik testified that it was around
4:00 p.m. when he saw appellant carrying Remelyn toward the ipil-ipil grove. Given the 130-
meter distance between the ipil-ipil grove and the houses of appellant and of Amalia Loyola,
appellant could have easily taken Remelyn from her house, raped her at the ipil-ipil grove, and
left her there, all in a matter of a few minutes. Sometime past 4:00 p.m., he could then have
returned to his house, and together with Alex Loyola, proceeded to the COMELEC office to
register, and did all the subsequent acts he claims to have done.

The Court also notes the inconsistencies in the testimonies of Catalina and Loyola. The
discrepancies in the witnesses narration as to the time of arrival of appellant at the place where
Catalina was gathering tuba, his time of arrival at his own house, and the time when Loyola and
appellant actually parted ways, are not mere trivial details which could be forgotten by witnesses
because of the passage of time. To make matters worse, the appellants testimony was, at times,
contradicted by his own witnesses. Particularly telling was the conflict between appellants
statement that Totong had already left his house on the night of 24 March 1997 and Totong and
Catalinas own averments that Totong had stayed the night at appellants house. These
contradictory testimonies only made more incredulous appellants tale.

We now review the penalty of death imposed upon appellant. In the case at bar, the Information
states that appellant, by means of force and intimidationwillfully, unlawfully and feloniously
(had) carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and
prejudice.100[50] (emphasis ours) The Information did not allege that Remelyn was below seven
years old when she was violated. Appellant was therefore charged with simple rape, under
Section 335 of the Revised Penal Code, as amended by Republic Act No. 7659 (the Death
Penalty Law). Upon its passage, R.A. No. 7659 introduced seven new attendant circumstances,
which when present, will transform the crime to qualified rape, punishable by death. We again
stress that these new attendant circumstances must be properly pleaded in the information to
justify the imposition of the death penalty. The facts stated in the body of the information
determine the crime for which the accused stands charged and for which he must be tried.101[51]
The main purpose of requiring all the elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. It would be a denial of the right of the
accused to be informed of the charges against him and, consequently, a denial of due process, if
he is charged with simple rape and be convicted of its qualified form punishable with death,
although the attendant circumstance qualifying the offense and resulting in capital punishment
was not alleged in the indictment on which he was arraigned.102[52]

We now review the damages awarded by the trial court. Time and again, we have ruled that
when there is a finding that rape had been committed, the award of civil indemnity ex delicto is
mandatory.103[53] If the death penalty has been imposed, the indemnity should be P75,000.00;
otherwise the victim is entitled to P50,000.00 for each count of rape.104[54] Thus, the appellant is
ordered to pay the amount of P50,000.00 as civil indemnity to Remelyn Loyola.105[55]

We affirm the award of moral damages. This is automatically awarded in rape cases without
need of further proof other than the commission of the crime, as it is assumed that a rape victim
has suffered moral injuries entitling her to such an award.106[56]

We also find the award of exemplary damages made by the lower court in favor of complainant
as proper because complainant has been correctly granted moral damages and the offense against
her was committed with the aggravating circumstance107[57] of age. However, the amount
awarded must be reduced to P25,000.00 in line with prevailing jurisprudence.108[58]

WHEREFORE, the judgment of conviction of the Regional Trial Court, Branch 19, of Digos,
Davao del Sur in Criminal Case No. 213(97) is hereby MODIFIED. Appellant is found guilty of
the crime of simple rape, and is sentenced to suffer the penalty of reclusion perpetua. He is
ordered to pay to complainant Remelyn Loyola the amounts of P50,000.00 as civil indemnity ex
delicto, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs against the
appellant.

SO ORDERED.

Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,


Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Doldol vs People of the Philippines

SECOND DIVISION

G.R. No. 164481 September 20, 2005

CONRADO C. DOLDOL, Petitioners,


vs.
PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS,
Respondent.

DECISION

CALLEJO, SR., J.:

Conformably to the Memorandum1 dated April 6, 1995 of the Provincial Auditor, a team of State
Auditors led by State Auditor Emilie S. Ritua, with State Auditors Lydia Naoe and Beverly T.
Cruz as members, conducted an audit of the cash and cash account of Conrado C. Doldol, the
Municipal Treasurer of Urbiztondo, Pangasinan. The audit covered the General Fund, Special
Education Fund and Trust Fund in his custody for the period of November 30, 1994 to June 8,
1995. Doldol and the Municipal
Accountant were present during the audit. The State Auditors discovered that Doldol had a
shortage of P801,933.26. They also noted that on June 5, 1995, he made cash withdrawals from
the municipalitys deposit account with the Land Bank of the Philippines (LBP) amounting to
P360,000.59. The withdrawal, purportedly for salaries, wages, allowances and mid-year bonuses
of municipal officers and employees, had not been recorded in the General Fund Cashbook as of
June 8, 1995. The State Auditors also noted that Doldol made adjustments in the said cashbook
on June 8, 1995, increasing his P801,933.26 shortage to P1,134,421.54. In a Letter2 dated July 5,
1995, the State Auditors demanded the immediate refund of the said amount, and for Doldol to
submit within 72 hours a written explanation on the said shortage. Doldol failed to respond and
was, thereafter, relieved of his duties. On July 20, 1995, he was directed to transfer the account
to Assistant Municipal Treasurer Loida Cancino.

The State Auditors then conducted another audit of the said account, this time covering the
period of June 8, 1995 to July 19, 1995. They discovered that Doldol incurred an added cash
shortage of P149,905.92. In a Letter to Doldol dated July 27, 1995, the State Auditors demanded
the immediate restitution of the missing fund, and directed him to submit within 72 hours a
written explanation why he incurred such shortage. Again, Doldol failed to respond. The State
Auditors submitted their Report to the Provincial Auditor on their examinations showing his
shortages. On August 3, 1995, the State Auditors submitted their Memorandum on the result of
the audits to the Provincial Auditor.

On the same day, Doldol wrote the Provincial Treasurer requesting that a re-audit be conducted
on his cash and cash account, taking exception to the findings of the State Auditors.
Instead of pursuing his request for a re-audit, Doldol opted to refund the missing funds. On
September 15, 1995, he remitted P200,000.00 to the Acting Municipal Treasurer for which he
was issued Official Receipt No. 436756. Doldol promised to pay the balance of his shortage, as
follows: P200,000.00 on October 31, 1995, and P884,139.66 on or before November 30, 1995.
However, he reneged on his promise.

On February 6, 1996, the Provincial Auditor transmitted the Memorandum and Consolidated
Report of the State Auditors to the Ombudsman, and requested that Doldol be charged for
malversation of public funds. Despite the extensions given to him, Doldol failed to file his
counter-affidavit.

Two informations for malversation of public funds were then filed against Doldol in the
Regional Trial Court (RTC) of San Carlos City. The first Information, docketed as Criminal Case
No. SCC-2760, reads:

That on or about June 8, 1995, or sometime prior or subsequent thereto, in Urbiztondo,


Pangasinan, Philippines and within the jurisdiction of this Honorable Court, CONRADO C.
DOLDOL, a public officer, being then the Municipal Treasurer, Municipality of Urbiztondo,
Pangasinan, and as such accountable for public funds received and/or entrusted to him by reason
of his office, acting in relation of his office and taking
advantage of the same, did then and there wilfully, unlawfully and feloniously, use and benefit
the amount of ONE MILLION ONE HUNDRED THIRTY-FOUR THOUSAND FOUR
HUNDRED TWENTY-ONE PESOS and 54/100 (P1,134,421.54) from such public funds
received by him by reason of his office, to the damage of the government in the amount
aforestated.

CONTRARY TO LAW.3

The second Information, docketed as Criminal Case No. SCC-2763, reads:

That sometime between June 8, 1995 and July 19, 1995 or sometime prior or subsequent thereto,
in Urbiztondo, Pangasinan, Philippines and within the jurisdiction of this Honorable Court,
CONRADO C. DOLDOL, a public officer, being then the Municipal Treasurer, Municipality of
Urbiztondo, Pangasinan, and as such accountable for public funds received and/or entrusted to
him by reason of his office, acting in relation of his office and taking advantage of the same, did
then and there wilfully, unlawfully and feloniously, take, misappropriate and convert to his
personal use and benefit the amount of ONE HUNDRED FORTY-NINE THOUSAND NINE
HUNDRED FIVE PESOS and 92/100 (P149,905.92) from such public funds received by him by
reason of his office, to the damage of the government in the amount aforestated.

CONTRARY TO LAW.4

Doldol testified that the funds which the State Auditors found missing were, in fact, cash
advances availed of by the municipal employees. He insisted that not a single centavo was used
for his personal benefit. He averred that the charges lodged against him were premature because
the same were based on an incomplete audit.
In a Joint Decision, the trial court convicted the accused of the crimes charged. The fallo of the
decision reads:

WHEREFORE, premises considered, the accused Conrado Doldol is hereby found guilty beyond
reasonable doubt of the crime of Malversation of Public Funds in Criminal Case No. SCC-2760
and in Criminal Case No. SCC-2763, as defined and penalized by Art. 217 of the Revised Penal
Code. In both cases, the amount involved is more than P22,000.00, as such the penalty to be
imposed is reclusion temporal in its maximum period to reclusion perpetua. Considering that the
accused surrendered to the police in Urbiztondo, Pangasinan (See Exh. 4) and being entitled to
the provision of [the] Indeterminate Sentence Law, he is hereby sentenced to suffer an
indeterminate penalty of 10 years, 1 day of prision mayor as minimum to 18 years, 8 months of
reclusion temporal as maximum in each of the two cases. Further, he is ordered to pay the
amount of P1,134,421.54 in Criminal Case No. SCC-2760 and another amount of P149,905.92 in
Criminal Case No. SCC-2763 minus, of course, his advance payment of P200,187.80. In
addition, he should be made to suffer the accessory penalties corresponding to the principal
penalty imposed upon him which includes perpetual absolute disqualification (Art. 41, Rev.
Penal Code) and to pay the costs.

SO ORDERED.5

On appeal to the Court of Appeals (CA), Doldol alleged:

1. That the trial court erred in rejecting the defenses put up by the accused as follows:

a. The evidence shows that the audits were not yet completed when the letters of demand were
served upon him to produce the alleged missing funds.

b. He was not given the chance to further verify the records despite his request to that effect.

c. There is no evidence that he took the money from the vault or brought it home.

d. The missing funds, if any, were cash advances of certain municipal employees.

e. His having borrowed money from the bank negates the charge of misappropriation of public
funds.

2. That the trial court erred in convicting the accused based on the testimonies of the auditors and
the documentary evidence adduced by them.

3. That the trial court erred in sentencing the accused to suffer the penalties imposed by the
assailed joint decision.6

On February 11, 2001, the CA rendered judgment affirming the appealed decision, and, likewise,
denied Doldols motion for reconsideration thereof.
Doldol, now the petitioner, forthwith filed the present petition for review on certiorari, faulting
the CA as follows:

1. In affirming the joint decision of the Regional Trial Court, Branch 56, San Carlos City,
Pangasinan in Crim. Case Nos. SCC-2760 and SCC-2763;

2. In convicting the accused-petitioner on the basis of an erroneous and incomplete audit;

3. In not dismissing the cases against the accused-petitioner.7

The petitioner reiterates his arguments that the audit of his accountabilities had not been
completed because the State Auditors had yet to conduct a verification of their initial findings
based on the cashbook and a reconciliation of the bank deposits of the municipality. The
petitioner insists that the State Auditors did not submit any bank reconciliation statement. The
petitioner argues that he was never given a chance to explain and point out that he did not incur
any shortage of public funds, and that the charges against him should be dismissed. To bolster
his claim, he cites the ruling of this Court in Dumagat v. Sandiganbayan8 and Section 560 of the
Manual of Instructions to Treasurers and Auditors and other Guidelines to bolster his claim.

The petitioner asserts that the prosecution failed to prove that the public funds were for his
personal use. In fact, the petitioner insists, the evidence shows that the alleged missing funds
were unliquidated cash advances of employees. Hence, the petitioner concludes, the prima facie
presumption under the last paragraph of Article 217 of the Revised Penal Code does not apply.

In its comment on the petition, the Office of the Solicitor General (OSG) asserts that the issues
raised by the petitioner are factual and, under Rule 45 of the Rules of Court, only questions of
law may be raised. The OSG posits that the findings of facts of the trial court, as affirmed by the
CA, are conclusive on this Court, absent a showing that the trial court ignored, misconstrued or
misunderstood cogent facts and circumstances which, if considered, would change the outcome
of the case. The OSG maintains that the prosecution adduced proof beyond reasonable doubt that
the petitioner malversed the public funds subject of the two Informations. Moreover, the
petitioners contention that the charges against him were premature, because the audit of his
accountabilities had not yet been completed and he was not given a chance to explain the
whereabouts of the subject funds before the said charges were filed, is belied by the fact that he
even made a partial restitution of the public funds. The OSG notes that as found by the trial
court, the petitioner even failed to specify the names of the employees who were granted cash
advances and the accounts of the said advances. It further avers that the ruling of this Court in
Dumagat v. Sandiganbayan9 does not apply because:

In his vain attempt to exculpate himself from criminal liability, petitioner invokes the doctrine
established in Dumagat vs. Sandiganbayan, et al., [211 SCRA 171, 177 (1992)]], wherein this
Honorable Court acquitted the accused of the crime of malversation of public funds, holding that
"[s]ince the audit examination left much to be desired in terms of thoroughness and completeness
as there were accounts which were not considered, the same cannot be made the basis for
holding petitioner liable for malversation."
It is submitted that the ruling in Dumagat vs. Sandiganbayan (supra) is not applicable to the
instant case as the two cases are based on different factual circumstances.

In the first place, in Dumagat vs. Sandiganbayan (supra, at p. 178), there was a finding that the
"haphazard examination of the cash accountability of petitioner" was made by the auditor "in
violation of the Manual of Instructions to Treasurers and Auditors" and that "the missing funds
would have been discovered if only the auditor took into consideration the contents of the two
vaults in Sindangan and Tampisilan and the fact that her collection in Dipolog City were
deposited with the NFA cashier." In the instant case, there was sufficient compliance with the
Manual of Instructions to Treasurers and Auditors as the two (2) auditing teams had completed
their examination and, thereafter, required herein petitioner to produce or explain the shortages
of funds in his custody. Notwithstanding the demand for him to explain the shortages, petitioner
totally disregarded the same and further failed to produce upon demand the missing funds
amounting to P1,134,421.54 and P149,905.92. There was, thus, nothing left for the team of
auditors to do in the instant case. If at all, State Auditor Ritua requested for the return of
petitioners cashbook and passbooks merely to reconcile and confirm the correctness of their
findings.10

The petition has no merit.

The evidence on record shows that the team of State Auditors conducted its first audit of cash
and cash accounts of the General Fund, Special Education Fund and Trust Fund in the custody of
the petitioner, and discovered that he had a shortage of P1,134,421.54.11

In a Letter12 dated July 5, 1995, the State Auditors demanded that the petitioner immediately
produce the missing funds. He was also required to submit within 72 hours a written explanation
why the shortage occurred. In the meantime, the State Auditors conducted another audit of the
cash and cash accounts of the petitioner during the period of June 8, 1995 to July 19, 1995, and
he was found to have a shortage of P149,905.92. The petitioner was informed of the results of
the audit in a Letter dated July 27, 1995, where he was directed to refund his shortage of
P149,905.92 and to submit a written explanation thereon within 72 hours.13 However, the
petitioner failed to respond to such demand, and failed to object to the findings and conclusions
of the State Auditors. It bears stressing that the petitioner was present during the said audit.

While it is true that the petitioner requested for a re-audit on August 3, 1995 and objected to
some of the findings of the audit team, he addressed the letter-request to the Provincial
Treasurer, and not to the Provincial Auditor of Pangasinan. We note that while the Provincial
Auditor had already signed the Transmittal Letter dated August 3, 1995 on the State Auditors
Report and request for the petitioners prosecution for malversation of public funds, it was filed
only on February 6, 1996. In the meantime, the Provincial Auditor never received any letter from
the petitioner requesting for a re-audit of his account.

Admittedly, State Auditor Ritua conducted an audit of the General Fund, the Special Education
Fund and Trust Fund Passbook, and the LBP and DBP Passbooks on July 11, 1995 for
verification and reconciliation purposes. However, the petitioner was not barred from examining
and receiving the same, preparatory to the submission of his explanation to the State Auditors
demand-letters. Indeed, the petitioner was even able to write the Provincial Treasurer on August
3, 1995, and requested his objection to such findings. The following findings and ratiocination of
the CA, as supported by the evidence on record, negate the submission of the petitioner:

[T]he records at the depository banks confirmed the correctness of the COAs findings that
there were, indeed, shortages in the funds under appellants control, thus, rendering appellants
request for a re-audit as a mere superfluous and redundant procedure (TSN, Amando T. Sison;
Emelie Ritua, supra).

Appellants contention that he was not given the chance to verify the records under audit despite
a request to that effect deserves scant consideration. The records show that appellant was twice
afforded ample opportunity to replenish the funds or explain the reason for its disappearance.
Verily, this could have been the perfect opportunity for the appellant to verify the records and
provide an acceptable reason behind the shortages in the municipal funds under his custody.
Appellant, however, on both instances failed to reply to the demands given by the COA. For
having refused "to face the music," so to speak, and disregarded the demands sent by the COA,
appellant has only himself to blame if he has lost any opportunity to further verify the financial
records of the municipality.14

The record of the Ombudsman shows that the petitioner was required to submit his counter-
affidavit, but requested for time to do so, on his representation that his request to the
Commission on Audit for a re-audit was still pending. It turned out that the petitioner made no
such request.
Moreover, the petitioner failed to submit his counter-affidavit to the Ombudsman. Thus, the
petitioners submission that the audit of his account had not been completed before the report of
the State Auditors was referred to the Ombudsman is not correct.

Except for his bare testimony, the petitioner offered no competent and credible evidence to prove
that the missing funds were actually cash advances of employees in the municipality. The
petitioner could have offered in evidence the documents evidencing the names of the recipients
and amounts of the cash advances, but failed to do so. Moreover, the petitioner wrote the
Provincial Auditor and offered to refund the missing funds as follows: P200,000.00 on
September 15, 1995, P200,000.00 on or before October 31, 1995, and P884,139.66 on November
30, 1995. He was able to pay only P200,000.00 on September 15, 1995, and failed to remit the
balance of his shortage. Such partial restitution of the petitioners of the cash shortage is an
implied admission of misappropriation of the missing funds. The ruling of the CA on this matter
is correct:

As We have already stated hereinabove, on September 15, 1995, not too long after the shortages
in the municipal funds were discovered, appellant made a partial payment/settlement in the
amount of 200,187.80 pesos as evidenced by Official Receipt No. 436756 (Exhibit "8," Record,
Volume III, p. 6). With respect to the balance of the missing funds, appellant promised to pay the
same in installment basis. Appellant, though, failed to comply with his undertaking (Record,
Volume I, p. 457; TSN, Amando T. Sison, July 27, 1998, pp. 32-33). Said payment is of no
moment and could not have legally brought acquittal for the appellant. On the contrary, as
guided by Section 27, Rule 130 of the Rules on Evidence, We hold that said payment,
particularly when taken in conjunction with appellants commitment to gradually pay the
remainder of the missing funds, is a clear offer of compromise which must be treated as an
implied admission of appellants guilt that he embezzled or converted the missing funds to his
personal use.15

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The
Decision of the Court of Appeals in CA-G.R. CR No. 25845 is AFFIRMED. Costs against the
petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.

c. Confessions

Ladiana vs People of the Philippines

THIRD DIVISION

[G.R. No. 144293. December 4, 2002]

JOSUE R. LADIANA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

The Constitution bars the admission in evidence of any statement extracted by the police from
the accused without the assistance of competent and independent counsel during a custodial
investigation. However, a counter-affidavit voluntarily presented by the accused during the
preliminary investigation, even if made without the assistance of counsel, may be used as
evidence against the affiant.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10,
2000 Decision109[1] and August 4, 2000 Resolution110[2] of the Sandiganbayan (First Division) in
Criminal Case No. 16988. The dispositive portion of the assailed Decision reads as follows:
WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY
beyond reasonable doubt of the crime of homicide and, in the absence of any modifying
circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence of
imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory
penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in the
total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs.111[3]

The assailed Resolution denied petitioners Motion for Reconsideration.

Petitioner was originally charged with murder before the Sandiganbayan in an Information 112[4]
dated August 5, 1991. However, the anti-graft court issued an Order113[5] dated October 14, 1991,
noting that besides the allegation that the crime was allegedly committed by the accused while he
was taking advantage of his official position, nothing else is in the Information to indicate this
fact so that, as the Information stands, nothing except a conclusion of fact exists to vest
jurisdiction [in] this Court over the accused and over the crime for which he is charged.

Further, the Order gave the government sufficient time to amend the Information to show
adequate facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an
Amended Information,114[6] still charging petitioner with murder, was filed on April 1, 1992. The
accusatory portion reads as follows:

That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then a member of the Integrated National Police (INP now PNP) assigned at
the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which is primarily to
enforce peace and order within his jurisdiction, taking advantage of his official position
confronted Francisco San Juan why the latter was removing the steel pipes which were
previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street,
Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the
said street and when Francisco San Juan told the accused that the latter has no business in
stopping him, said accused who was armed with a firearm, with intent to kill and with treachery,
did then and there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan
with the firearm hitting Francisco San Juan at his head and neck inflicting upon him fatal wounds
thereby causing the death of Francisco San Juan.115[7]
During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte,116[8] pled not
guilty.117[9] After due trial, the Sandiganbayan found him guilty of homicide, not murder.

The Facts

In their Memoranda, both the prosecution and the defense substantially relied upon the
Sandiganbayans narration of the facts as follows:

The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo
Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their
respective testimonies, in essence are as follows, to wit:

1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife
of Francisco San Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that
Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and
killed by accused Ladiana, who happens to be also a distant relative of the decedent.

Caridad recounted that, on December 29, 1989, she was in her house when an unidentified
woman came and told her that her husband was killed by accused Ladiana. She immediately
called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly
transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of
Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete.

Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject
incident. At that point in time, she was not even allowed by the police to touch, much less get
near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised
her to go home.

Caridad maintained that she was aware that her husband was killed by accused Ladiana because
this was what the woman actually told her. Moreover, accused Ladiana had given himself up to
the police authorities.

Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she
gave her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili).

Additionally, Caridad presented the Death Certificate of her husband and testified that he was
eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty
Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of
the death of Francisco.
On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and
that she did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted
she did not witness the killing of her husband.

On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot
wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated
that she was told that the wounds were the entry and the exit points. She also told the Court that
her husband was wearing short pants at the time of his death and that she found some bruises on
his knees.

Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend,
a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair
the steel humps which were used to block the street during school days for the protection and
safety of the school children.

2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that


he is a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been
designated as the radio operator of the station since 1989.

Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose
name he could no longer recall, reported to him about an existing trouble along Jacinto Street in
Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto
Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying
face up on the road. Cacalda did not examine the body of Francisco. He left the place of the
incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.

Cacalda had gathered from the people milling around the body of Francisco that it was accused
Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana.
However, he eventually saw accused Ladiana already inside the jail of the police station and
thereafter learned that said accused had surrendered to the police authority.

Cacalda recalled that he was later on investigated by Halili because he was the responding
policeman who went to the scene of the incident. Consequently, Cacalda executed a written
statement in relation to the subject incident.

On cross-examination, Cacalda testified that he was a radio operator and not an investigator of
the police station. He also testified that he did not witness the incident subject matter of the case
at bar.

Cacalda went on to testify that the people milling around the place of the incident told him that
accused Ladiana had already left. Because of this development, Cacalda proceeded to accused
Ladianaa house but was told that he had already gone to the police station. Cacalda accordingly
went to the police station where he saw accused Ladiana already locked inside the jail. He also
saw a stab wound on accused Ladianas right bicep but he did not anymore ask him how he
sustained the said injury.
3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a
physician and the Municipal Health Officer of Lumban, Laguna.

Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco
and that he had prepared the corresponding reports and/or documents relating thereto. Javan
made a sketch representing the anterior and posterior views of the body of Francisco, and labeled
and placed red markings on the gunshot wounds found on the said cadaver. The marking
Gunshot wound A is the point of entry, which is one (1) centimeter in diameter and situated two
(2) inches behind the left ear. The marking Gunshot wound B is the point of exit of Gunshot
wound A, which is two (2) centimeters in diameter and found above the right cheekbone and one
(1) inch below the right eye. Javan also testified that there is another gunshot wound and the
point of entry and exit are labeled as Gunshot wound C and Gunshot wound D, respectively.
Gunshot wound D is one and one-half (1-1/2) centimeters in diameter and located at the left
cheek, three and one-half (3-1/2) centimeters below the left eye, while Gunshot wound C is one
(1) centimeter in diameter and found at the right lateral aspect of the neck, at the level of the
adams apple.

According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound A.
As regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance of
more than twenty-four (24) inches away.

Lastly, Javan testified that he was not able to retrieve any bullet during the examination.
However, judging from the size of the wound and the point of entry, Javan opined that the
firearm used was probably a caliber 38.

On questions propounded by the Court, Javan testified that Gunshot wound A could have been
fired first because the trajectory is on the same level so much so that the assailant and the victim
could have been both standing. Javan inferred that Gunshot wound C could have been inflicted
while the victim was already falling down. Javan then stressed that both wounds are fatal in
nature.

4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a


police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense
that he was part of the group of policemen who proceeded to the place of the subject incident and
that he found the body of Francisco lying along the road. Additionally, the defense admitted the
existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six
Thousand Five Hundred Pesos (P6,500.00).

5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired


Assistant Prosecutor of Laguna.

Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an
admission as to the authorship, authenticity, and voluntariness of the execution of the counter-
affidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counter-
affidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco. However,
accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking
accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana.

However, Cortez emphasized that he was not the one who conducted the preliminary
investigation of the complaint which led to the filing of the subject case. Additionally, Cortez
testified that he would not be able to anymore recognize the face of the affiant in the said
counter-affidavit, but maintained that there was a person who appeared and identified himself as
Josue Ladiana before he affixed his signature on the counter-affidavit.

After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its
case.

On May 31, 1995, this Court issued a resolution admitting all the documentary evidence
submitted by the prosecution.

On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to
Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial
evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the
offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in
character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never
presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death
of the victim, but not the identity of the person who caused said death.

On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer
to evidence is no longer appropriate considering that accused Ladiana received a copy of this
Courts resolution dated May 31, 1995 on the admission of the prosecutions documentary exhibits
as early as May 25, 1995.

On September 2, 1996, in view of his perception that the evidence submitted by the prosecution
is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his
right to present controverting evidence. Instead, he asked for time to file a written memorandum.
Thus, both parties were given time within which to do so, after which the case shall be deemed
submitted for resolution.

Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense.
As for the prosecution, it opted not to file any.118[10] (Citations omitted)

Ruling of the Sandiganbayan

The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner
beyond reasonable doubt. The court a quo held that his Counter-Affidavit,119[11] in which he had
admitted to having fired the fatal shots that caused the victims death,120[12] may be used as
evidence against him. It underscored the admission made by the defense as to the authorship, the
authenticity and the voluntariness of the execution of the Counter-Affidavit.121[13] In short, it
ruled that the document had sufficiently established his responsibility for the death of the victim.
However, it found no evidence of treachery; thus, it convicted him of homicide only.122[14]

Hence, this Petition.123[15]

Issues

In his Memorandum, petitioner raises the following issues for this Courts consideration:

I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable
doubt of the crime of homicide even in the absence of any eyewitness who personally saw the
sho[o]ting of the victim by the accused, basing it only on the testimony of the prosecutor who
had administered the oath on the Counter-affidavit filed by petitioner-accused.

II. Whether or not the prosecution has presented proof beyond reasonable doubt to
overcome the constitutional presumption of innocence of the accused and his right against self-
incrimination on the basis of the Counter-affidavit whose execution was admitted by the counsel
of the petitioner, but not by the accused personally.

III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by
the Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted
against him as evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by
counsel and while he was under custodial investigation.

IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the
Order of August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence
dated August 16, 1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985
Rules on Criminal Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan.

V. Whether or not accused is entitled to the mitigating circumstance of voluntary


surrender which fact was admitted by the prosecution as it even used the same as proof of the
guilt of the accused.124[16]
In short, petitioner raises the following questions in this appeal: (1) whether the Counter-
Affidavit he executed during the preliminary investigation of this case is admissible proof
showing his complicity in the crime, (2) whether the Sandiganbayan erred in denying his Motion
for Leave to File a Demurrer to Evidence, and (3) whether he is entitled to the mitigating
circumstance of voluntary surrender.

This Courts Ruling

The Petition is not meritorious.

First Issue:
Admissibility of Counter-Affidavit

Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-
Affidavit125[17] submitted by petitioner during the preliminary investigation. He argues that no
counsel was present when the Affidavit was executed. In support of his argument, he cites the
Constitution thus:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.126[18]

It is well-settled that the foregoing legal formalities required by the fundamental law of the land
apply only to extra-judicial confessions or admissions obtained during custodial
investigations.127[19] Indeed, the rights enumerated in the constitutional provision exist only in
custodial interrogations, or in-custody interrogation of accused persons.128[20]
Custodial interrogation is the questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant
way.129[21]

In the present case, petitioner admits that the questioned statements were made during the
preliminary investigation, not during the custodial investigation. However, he argues that the
right to competent and independent counsel also applies during preliminary investigations.

We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether


there is sufficient ground to engender a well-founded belief that a crime has been committed, and
that the respondent is probably guilty thereof and should be held for trial.130[22]

Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be
considered as being under custodial investigation. In fact, this Court has unequivocally declared
that a defendant on trial or under preliminary investigation is not under custodial
interrogation.131[23] It explained as follows:

His [accused] interrogation by the police, if any there had been would already have been ended
at the time of the filing of the criminal case in court (or the public prosecutors office). Hence,
with respect to a defendant in a criminal case already pending in court (or the public prosecutors
office), there is no occasion to speak of his right while under custodial interrogation laid down
by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution [now
Section 12, Article III of the 1987 Constitution], for the obvious reason that he is no longer under
custodial interrogation.132[24]

There is no question that even in the absence of counsel, the admissions made by petitioner in his
Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed
facts that it was not exacted by the police while he was under custody or interrogation. Hence,
the constitutional rights of a person under custodial investigation as embodied in Article III,
Section 12 of the 1987 Constitution, are not at issue in this case.

However, the accused -- whether in court or undergoing preliminary investigation before the
public prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1)
the right to refuse to be made witnesses; 2) the right not to have any prejudice whatsoever
imputed to them by such refusal; 3) the right to testify on their own behalf, subject to cross-
examination by the prosecution; and 4) while testifying, the right to refuse to answer a specific
question that tends to incriminate them for some crime other than that for which they are being
prosecuted.133[25]

We do not, however, agree with the Sandiganbayans characterization of petitioners Counter-


Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130
of the Revised Rules on Evidence distinguish one from the other as follows:

SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact
may be given in evidence against him.

SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him.

In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement


of fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the
offense with which one is charged.134[26] Thus, in the case at bar, a statement by the accused
admitting the commission of the act charged against him but denying that it was done with
criminal intent is an admission, not a confession.135[27]

The Counter-Affidavit in question contains an admission that petitioner actually shot the victim
when the latter was attacking him. We quote the pertinent portion:

[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-
shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng
aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay
hindi ko alam na siya ay tinamaan;136[28]

Through the above statement, petitioner admits shooting the victim -- which eventually led to the
latters death -- but denies having done it with any criminal intent. In fact, he claims he did it in
self-defense. Nevertheless, whether categorized as a confession or as an admission, it is
admissible in evidence against him.

Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted
it to the public prosecutor to justify his actions in relation to the charges hurled against him. It
escapes this Court how he can cavalierly deny a document that he has voluntarily submitted and
originally relied upon in his defense.

In general, admissions may be rebutted by confessing their untruth or by showing they were
made by mistake. The party may also establish that the response that formed the admission was
made in a jocular, not a serious, manner; or that the admission was made in ignorance of the true
state of facts.137[29] Yet, petitioner never offered any rationalization why such admissions had
been made, thus, leaving them unrebutted. In addition, admissions made under oath, as in the
case at bar, are evidence of great weight against the declarant. They throw on him the burden of
showing a mistake.138[30]

Petitioner contends that nowhere in the transcripts of this case can it be found that he has
admitted to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We
quote verbatim the proceedings in the Sandiganbayan:

PJ GARCHITORENA

Well, he will identify the person who took the oath before him. Will you deny that it was your
client who took the oath before the Fiscal at the preliminary investigation?

ATTY. ILAGAN

We will admit that, your Honor.

PJ GARCHITORENA

So in that case we will have no question about the authorship, authenticity and the voluntariness
of the execution of the counter-affidavit dated July 31, 1990? Companiero?

ATTY ILAGAN

Admitted, your Honor.139[31]

The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the
unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by the
actions of their counsels, save when the latters negligence is so gross, reckless and inexcusable
that the former are deprived of their day in court.140[32] Also, clients, being bound by the actions
of their counsels, cannot complain that the result of the litigation might have been different had
their lawyers proceeded differently.141[33] A counsel may err as to the competency of witnesses,
the sufficiency and the relevance of evidence, the proper defense, the burden of proof, the
introduction or the withholding of witnesses or pieces of evidence, or the manner of arguing the
case. This Court, however, has ruled several times that those are not even proper grounds for a
new trial, unless the counsels incompetence is so gross that the clients are prevented from fairly
presenting their case.142[34]

Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the
killing was justified, and that the latter incurred no criminal liability therefor.143[35] Petitioner
should have relied on the strength of his own evidence and not on the weakness of that for the
prosecution. Even if his evidence be weak, it cannot be disbelieved after the accused has
admitted the killing.144[36]

Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense.
Hence, he could not be bound by it. This argument deserves scant consideration. As discussed
earlier, the declarations contained in his Counter-Affidavit are admissions that may be used as
evidence against him.145[37] The Sandiganbayan did not unfairly presume that he had indeed
raised the theory of self-defense, because this argument had already been laid out in his Counter-
Affidavit. No presumption was necessary, because the admission was clear and unequivocal.

Neither do we believe petitioners claim that the anti-graft court miserably failed to give equal
effect or treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately
and without reasonable basis the parts which are incriminating in character, and ignoring without
sufficient legal basis the exculpatory assertions of the accused.146[38]

The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are


utterly insufficient to discharge his burden of proving that the act of killing was justified. It is
hornbook doctrine that self-defense must be proved with certainty by sufficient, satisfactory and
convincing evidence that excludes any vestige of criminal aggression on the part of the person
invoking it.147[39] It cannot be entertained if it is uncorroborated by any separate and competent
evidence, and it is also doubtful.148[40] The question whether the accused acted in self-defense is
essentially a question of fact properly evaluated by the lower court; in this case, the
Sandiganbayan.149[41]
By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense
enumerated in the law.150[42] Had petitioner been more vigilant in protecting his rights, he could
have presented clear and cogent evidence to prove those elements. But, as found by the court a
quo, he not only failed to discharge the burden of proving the existence of the justifying
circumstance of self-defense; he did not even bother to present any evidence at all.151[43] So, we
do not see how the Sandiganbayan could have been selective in its treatment of his Counter-
Affidavit.

Verily, if the accused fails to discharge the burden of proving the existence of self-defense or of
any other circumstance that eliminates criminal liability, his conviction shall of necessity follow,
on the basis of his admission of the killing.152[44] Upholding this principle does not in any way
violate his right to be presumed innocent until proven guilty. When he admitted to having killed
the victim, the burden of proving his innocence fell on him. It became his duty to establish by
clear and convincing evidence the lawful justification for the killing.

Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the
crime charged.153[45] As far as he is concerned, homicide has already been established. The fact
of death and its cause were established by his admissions coupled with the other prosecution
evidence including the Certificate of Death,154[46] the Certificate of Post-Mortem
Examination155[47] and the Medico-Legal Findings.156[48] The intent to kill is likewise presumed
from the fact of death.157[49]

Second Issue:
Denial of Motion for Leave to File Demurrer

Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for
Leave to File Demurrer to Evidence. He brands this denial as legally and constitutionally
wrong.158[50]
We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court.159[51]
And, unless there is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial
courts resolution may not be disturbed.160[52]

Final Issue:
Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of
tenor, implores this Court to consider his voluntary surrender to the police authorities as a
mitigating circumstance. He argues that two of the prosecution witnesses testified that he had
surrendered to the police authorities after the shooting incident.161[53] To buttress his argument,
he contends that the main reason for his voluntary surrender is that he sincerely believe[d] that he
was legally justified in defending himself as a policeman when he fought the victim after he was
attacked by the latter.162[54] It goes without saying that this statement only reaffirms the
admissions contained in his Counter-Affidavit, which he so vehemently tried to discredit.

For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the
offender has not been actually arrested, 2) the offender surrenders himself to a person in
authority or to the latters agent, and 3) the surrender is voluntary.163[55] To be sufficient, the
surrender must be spontaneous and made in a manner clearly indicating the intent of the accused
to surrender unconditionally, either because they acknowledge their guilt or wish to save the
authorities the trouble and the expense that will necessarily be incurred in searching for and
capturing them.164[56]

The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are
statements made by two (2) prosecution witnesses that they were allegedly told by other people
that he had already gone to the police station. There is no showing that he was not actually
arrested; or that when he went to the police station, he surrendered himself to a person in
authority. Neither is there any finding that he has evinced a desire to own to any complicity in
the killing.

We have ruled in the past that the accused who had gone to the police headquarters merely to
report the shooting incident did not evince any desire to admit responsibility for the killing.
Thus, he could not be deemed to have voluntarily surrendered.165[57] In the absence of sufficient
and convincing proof showing the existence of indispensable circumstances, we cannot
appreciate voluntary surrender to mitigate petitioners penalty.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED.
Costs against petitioner.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Puno, (Chairman), J., abroad on official business.

People of the Philippines vs Ulit

EN BANC

[G.R. Nos. 131799-801. February 23, 2004]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. FELICIANO ULIT y TAMPOY, appellant.

DECISION

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision166[1] dated December 17, 1997 of the
Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388
finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two counts of
qualified rape.167[2] In the same decision, the appellant was convicted of two counts of acts of
lasciviousness. For each count of rape, the trial court sentenced him to suffer the supreme
penalty of death, while for each count of acts of lasciviousness, the appellant was sentenced to
suffer imprisonment from eight (8) years, eight (8) months and one (1) day of prision mayor in
its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of
reclusion temporal in its medium period, as maximum. The appellant was, likewise, ordered to
indemnify the victim Lucelle Serrano, the amount of P50,000 for each count of rape and P20,000
for each count of acts of lasciviousness.

The Indictments
Upon the sworn complaint of the victim Lucelle Serrano, four Informations were filed against
her uncle, the appellant. The docket number and the accusatory portion of each Information
reads:

Criminal Case No. 97-385

That sometime in the month of November 1996, in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
who is the uncle of the complainant LUCELLE SERRANO y ULIT, hence, her relative by
consanguinity within the third civil degree, while armed with a knife, by means of force,
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl,
without her consent and against her will, to her damage and prejudice.

CONTRARY TO LAW.168[3]

Criminal Case No. 97-386

That sometime in the month of February 1997, in the City of Makati, Metro Manila, Philippines,
a place within the jurisdiction of this Honorable Court, the above-named accused, who is the
uncle of complainant LUCELLE SERRANO y ULIT, hence her relative by consanguinity within
the third civil degree, while armed with a knife, by means of force, violence and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant
LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her
will, to her damage and prejudice.

CONTRARY TO LAW.169[4]

Criminal Case No. 97-387

That sometime in the month of December 1996, in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
with lewd design by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE
SERRANO y ULIT, an eleven (11) year old girl, by then and there kissing her and touching her
sexual organ, without her consent and against her will, to her damage and prejudice.

CONTRARY TO LAW.170[5]
Criminal Case No. 97-388

That on or about the 2nd day of March 1997, in the City of Makati, Metro Manila, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, with lewd
design by means of force, violence and intimidation, did then and there willfully, unlawfully and
feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an
eleven (11) year old girl, by then and there dragging her inside a bathroom and repeatedly
kissing her on her checks [sic], without her consent and against her will, to her damage and
prejudice.

CONTRARY TO LAW.171[6]

The appellant, assisted by counsel, pleaded not guilty during the arraignment. Joint trial of all the
cases ensued.

In the meantime, Lucelle was undergoing psychiatric treatment at the Philippine General
Hospital. On May 5, 1997, the prosecution presented her as its first witness.

On direct examination, Lucelle testified that she was born on February 19, 1986.172[7] In
November 1996, her uncle, the appellant, did something to her. When the prosecution asked her
what happened, Lucelle did not answer. When asked if she wanted to continue with her
testimony, again, she did not respond. The trial was reset to June 2 and 9, 1997. When trial
resumed on June 9, 1997, Lucelle was questioned by the prosecution on direct examination, but
still, she gave no answer. She cried profusely in open court. When asked by the court if she
wanted to proceed with the trial, she remained silent. The trial was reset anew to July 9 and 14,
1997.

In the meantime, the trial court ordered that Lucelle be subjected to physical and psychological
examinations at the National Center for Mental Health (NCMH). Dr. Rochelflume Samson
examined Lucelle and submitted her Report dated August 29, 1997 with the following remarks
and recommendation:

Based on clinical history, mental status examination and psychological evaluation, this patient is
suffering from Post-Traumatic Stress Disorder. This illness is characterized by intense fear and
feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes
her intense psychological distress whenever asked to talk about the rape scene or incident. Thus,
she avoids recollections of the trauma.
At present, she is still manifesting symptoms described above. She would be having difficulties
testifying in court because of this. She requires psychiatric treatment at the Out-Patient
Section.173[8]

During the trial on July 14, 1997, Lucelle refused to take the witness stand. The trial was reset to
July 21, 1997.

During the hearing on October 20, 1997, the prosecution presented Lucelle anew to continue
with her testimony on direct examination. She declared that the appellant raped her in November
1996 and many other times thereafter in her residence at No. 7104 San Maximo Street, Makati
City. Instead of asking questions to elicit the facts and circumstances before and during the
commission of the crimes, the prosecutor asked Lucelle to identify her signature in her sworn
statement174[9] and to affirm the truth of its contents. She did so. The public prosecutor then
marked the sworn statement in evidence as Exhibit H, and then manifested to the court that he
had no more questions for the witness on direct examination.

On clarificatory questions by the court, Lucelle testified that she was born on February 19, 1986.
The appellant mounted her, removed her pants, poked a knife at her and threatened her.175[10]

On cross-examination, Lucelle testified that the appellant was her mothers older brother. In
November 1996, she was not enrolled in any school. Her father was working at a construction
firm, the appellant was employed at the Department of Environment and Sanitation in Makati
City, while her grandmother, who lived with her, worked as a maid in Bel Air Subdivison. Her
mother worked for one of her fathers cousins. On re-direct examination, the prosecution elicited
from Lucelle that the appellant raped her in November 1996 at 11:00 p.m. inside the room of her
aunt Marina in her grandmothers house at No. 7104 San Maximo Street, Olympia, Makati City,
and that her aunt, Marina, and her Ate Sharon were inside the room. When asked where her aunt
and Ate Sharon were when she was being raped in her aunts room, Lucelle did not respond.
When asked why she did not respond to the questions propounded to her during the previous
hearings and why she had been crying in open court, Lucelle replied that she was afraid of her
uncle, the appellant.

In her sworn statement,176[11] Lucelle alleged that sometime in November 1996, she was sleeping
in a room in the house. It was about 6 oclock in the evening. She was awakened when she felt
someone kissing her on the cheek. When she opened her eyes, she saw her uncle, the appellant,
armed with a bladed weapon (balisong). He poked the weapon on the left side of her neck. He
warned her that if she told her parents, he would kill her. He removed her panties, undressed
himself and mounted her. He then inserted his penis into her vagina. She felt pain in her private
part and cried. The appellant, thereafter, left the room. Also during the month of November
1996, the appellant continued kissing her whenever her parents were out of the house.

In December 1996, Lucelle was in the room when the appellant entered and kissed her and
mashed her private parts. Sometime in February 1997, the appellant again abused her (sinalbahe)
while she was in the same room. It was about 11 oclock in the evening. He again warned her not
to divulge to her parents what he did to her. At 9:00 p.m. on March 2, 1997, Lucelle urinated in
the bathroom and when she was about to go out, the appellant entered, pushed her inside and
kissed her on her cheeks several times.

Celso Serrano, Lucelles father, testified that sometime in November 1996, at dawn, he was in
bed and noticed that the appellant was in the bedroom of his cousin-in-law. Sometime later, he
went to the bathroom. He then heard his wife ask the appellant where he had come from and the
latter replied that he just came from the roof of the house. On another occasion, one early Sunday
morning, he noticed blood stains on Lucelles short pants. When she declared that she had her
monthly period, he gave her P5.00 with which to buy sanitary napkins. Lucelle refused to accept
the money. He suggested that she wash herself but she just nodded her head. When he asked her
why she refused to accept the money, Lucelle replied that she was afraid to tell him because she
might be killed.

Lourdes Serrano testified that she was Lucelles mother. Lucelle was born on February 19,
1986.177[12] She and her husband Celso Serrano and their daughter Lucelle resided with her
mother, Guadalupe Ulit, at No. 7104 San Maximo Street, Olympia, Makati City. Her sister
Marina and the appellant, her brother, also resided in the same house. The family slept together
in the evenings in the sala of the house while Marina slept in her bedroom. At times, Marina
allowed her niece Lucelle to sleep in her bedroom. At 11:00 p.m. on February 19, 1997, Lourdes
noticed that Lucelle was not at her side. The appellant, who usually also slept in the sala, was not
there either. Lourdes went to Marinas bedroom and saw Lucelle in bed (papag), covered with a
blanket. Beside her was the appellant who was wearing a pair of short pants and undershirt.
When the appellant saw Lourdes, he slid down from the bed, went under the papag, and furtively
left the room. When Lourdes removed the blanket, she saw Lucelle lying sideways with her
knees up to her chin (nakabaluktot). Lucelle was trembling with fear. When Lourdes asked
Lucelle what happened, she did not respond. Lourdes left the room and went back to the sala.
She wanted to talk to the appellant but decided against it when she saw him seated in the sala,
playing with his balisong.

Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her husband were having
dinner when she noticed that Lucelle was nowhere to be found. She looked for her daughter in
the house, but failed to find her. She then asked her cousin Nita if she had seen Lucelle. Nita
replied in the negative. When Lourdes asked Nita if Lucelle was inside the bathroom, Nita
responded that the appellant was using it. Momentarily, Lourdes saw the appellant emerge from
the bathroom. He was in his short pants and his shirt was on his shoulder. He was perspiring
profusely. Lourdes was flabbergasted when she saw Lucelle come out of the bathroom after the
appellant. Lucelle was crying and looked pale. When Lourdes asked Lucelle why she was crying,
she told her mother that she had just urinated. The appellant later told her sister Lourdes that he
did not do anything to Lucelle.

Believing that the appellant had been abusing their daughter, Celso and Lourdes brought Lucelle
on March 5, 1997, to Barangay Chairman Romeo Medina. On their way, Lucelle adamantly
refused to tell her parents what the appellant did to her. However, when they reached the
barangay headquarters, Lucelle told the barangay chairman that the appellant sexually abused
her. Thereafter, Lourdes filed a complaint with the barangay chairman against the appellant for
sexually molesting Lucelle.

Barangay Tanod Fernando David testified that on March 6, 1997, the barangay chairman ordered
him and Barangay Tanod Antonio Echavez to invite and bring the appellant to the barangay hall.
The barangay chairman asked the appellant if he raped Lucelle and the latter replied that he did.
A Sinumpaang Salaysay was prepared in the Office of the Barangay Chairman in which the
appellant admitted that he raped Lucelle in February 1997, and on March 2, 1997, despite her
resistance, and that he threatened to kill her and her family if she divulged the incidents to her
parents.178[13] The appellant signed his statement in the presence of the barangay chairman and
the barangay tanods.

From the barangay headquarters, the appellant was brought to the Makati City Police
Headquarters where Celso, Lourdes and Lucelle filed a complaint against him for rape and acts
of laciviousness. SPO4 Lilia Hogar of the Womens Desk Unit took the sworn statements of
Lourdes and Lucelle.179[14] She conducted a custodial investigation of the appellant who was
without counsel during which the latter admitted having raped the victim. SPO4 Hogar also
prepared a report on her investigation of the victims complaint.180[15]

On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified that on March
12, 1997, she conducted genital and vaginal examinations on Lucelle and submitted Living Case
Report No. MG-97-355 which contained the following findings:

GENERAL PHYSICAL EXAMINATION:

Height: 141 cm. Weight: 78 lbs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.


Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter. Nipples,
light-brown, protruding, 0.8 cm. in diameter.
No extragenital physical injuries noted.

GENERAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette,
lax. Vestibular mucosa, pinkish. Hymen, tall, thick, intact, distensible. Hymenal orifice, admits a
tube 2.5 cms. in diameter. Vaginal walls, lax. Rugosities, shallow.

CONCLUSIONS
1.) No evident sign of extragenital physical injuries noted on the body of the subject at
the time of examination.
2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in diameter) as to allow
complete penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury.181[16]

When the prosecution offered in evidence the appellants Sinumpaang Salaysay before the
barangay chairman182[17] as part of the testimony of Barangay Tanod Fernando David, the
appellant objected to its admission on the ground that the appellant was not assisted by counsel
and that, he was forced and coerced into signing the same. Nevertheless, the trial court admitted
the statement as part of Davids testimony. The appellants counsel, likewise, objected to the
admissibility of Lucelles sworn statement on the ground that she was incompetent to give the
same because of her mental illness. The trial court admitted the sworn statement of Lucelle in
evidence as part of her testimony.

After the prosecution had rested its case, the trial court reset the hearing to November 5, 1997 for
the appellant to adduce his evidence. When the case was called for trial on that date, his counsel
manifested to the court that the appellant was changing his plea in Criminal Cases Nos. 97-385
and 97-387 from not guilty to guilty. He also manifested that he would no longer adduce any
evidence in his defense in Criminal Cases Nos. 97-386 and 97-388 because the prosecution
failed to prove his guilt beyond reasonable doubt for the crimes charged therein. The trial court
suspended the proceedings and gave the appellant forty-five minutes to confer with his counsel.
When trial resumed, the appellant reiterated his earlier manifestation. When told by the court that
he could be sentenced to death for the rape charges, the appellant stood pat on his decision to
plead guilty in Criminal Cases Nos. 97-385 and 97-387, and to no longer present any evidence in
his defense in the other two cases. The appellant was re-arraigned in Criminal Cases Nos. 97-385
and 97-387 with the assistance of the same counsel and entered his plea of guilty to the charges.

On December 15, 1997, the trial court rendered judgment convicting the appellant of all the
crimes charged. The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case Nos. 97-385 and 97-386, for rape, the prosecution has proven beyond
reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in the
two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code,
as amended. He is hereby declare[d] CONVICTED in each of the cases. Accordingly he is
sentenced to suffer the supreme penalty [of] DEATH in each of the two cases; and indemnify the
victim LUCELLE SERRANO, in the amount of P50,000 as moral damages for each of the cases;

2. In Criminal Case Nos. 97-387 and 97-388, for acts of lasciviousness, the prosecution has
proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as
principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal
Code and penalized under Section 5(b) of R.A. 7610. He is hereby declared CONVICTED in
each of the two cases; and, accordingly, he is sentenced to suffer in each of the cases an
indeterminate prison term from eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal in its medium period, as maximum; and, indemnify the victim,
LUCELLE SERRANO, in the amount of P20,000 as moral damages for each of the cases.

SO ORDERED.183[18]

The trial court declared that even prescinding from the appellants plea of guilty, the prosecutor
adduced proof beyond reasonable doubt of the guilt of the appellant for qualified rape in
Criminal Cases Nos. 97-385 and 97-386. The trial court ruled that although Lucelle did not
testify on the contents of her sworn statement184[19] the same were admissible in evidence as part
of the res gestae.

The appellant did not appeal from the decision in Criminal Cases Nos. 97-387 and 97-388. In
view of the trial courts imposition of the death penalty on the appellant in Criminal Cases Nos.
97-385 and 97-386, the said cases were brought to this Court on automatic appeal.

The appellant assails the decision of the trial court with the lone assignment of error, to wit:

THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH
A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.185[20]

The appellant does not contest his conviction for rape in Criminal Cases Nos. 97-385 and 97-
386, and the validity of the proceedings in the said cases in the trial court. He pleads, however,
that he be spared the death penalty. He asserts that he was so remorseful for the crimes he
committed and that he pleaded guilty in Criminal Cases Nos. 97-385 and 97-387; he no longer
presented any evidence in Criminal Case No. 97-388 so that the proceedings before the court
would be shortened and simplified. Nevertheless, the appeal in a criminal case is a review de
novo and the court is not limited to the assigned errors.186[21] An appeal thus opens the whole
case for review, and the appellate tribunal may consider and correct errors though unassigned
and even reverse the decision of the trial court on the grounds other than those the parties raised
as errors.187[22]

Appellants Plea of Guilty in


Criminal Case No. 97-385
was Imprudently Made.

In Criminal Case No. 97-385, the appellant was charged with qualified rape, i.e., the rape of his
niece, who was a minor, punishable by death under Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659. Undoubtedly, the appellant was charged with a capital
offense. When the appellant informed the trial court of his decision to change his plea of not
guilty to guilty, it behooved the trial court to conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of his plea as mandated by Section 6, Rule 116 of
the Revised Rules of Criminal Procedure. In People vs. Camay,188[23] this Court enumerated the
following duties of the trial court under the rule:

1. The court must conduct a searching inquiry into the voluntariness and full comprehension
[by the accused] of the consequences of his plea;

2. The court must require the prosecution to present evidence to prove the guilt of the
accused and precise degree of his culpability; and

3. The court must require the prosecution to present evidence in his behalf and allow him to
do so if he desires.189[24]

The raison detre for the rule is that the courts must proceed with extreme care where the
imposable penalty is death, considering that the execution of such sentence is irrevocable.
Experience has shown that even innocent persons have at times pleaded guilty. Improvident
pleas of guilty to a capital offense on the part of the accused must be averted since by admitting
his guilt before the trial court, the accused would forfeit his life and liberty without having fully
understood the meaning, significance and the dire consequences of his plea.190[25]

There is no hard and fast rule as to how the trial judge may conduct a searching inquiry. It has
been held, however, that the focus of the inquiry must be on the voluntariness of the plea and the
full or complete comprehension by the accused of his plea of guilty so that it can truly be said
that it is based on a free and informed judgment. In People vs. Aranzado,191[26] we formulated the
following guidelines as to how the trial court may conduct its searching inquiry:

(1) Ascertain from the accused himself (a) how he was brought into the custody of the law;
(b) whether he had the assistance of a competent counsel during the custodial and
preliminary investigations; and (c) under what conditions he was detained and
interrogated during the investigations. These the court shall do in order to rule out the
possibility that the accused has been coerced or placed under a state of duress either by
actual threats of physical harm coming from malevolent or avenging quarters.

(2) Ask the defense counsel a series of questions as to whether he had conferred with, and
completely explained to, the accused the meaning and consequences of a plea of guilty.

(3) Elicit information about the personality profile of the accused, such as his age, socio-
economic status, and educational background, which may serve as a trustworthy index
of his capacity to give a free and informed plea of guilty.

(4) Inform the accused the exact length of imprisonment or nature of the penalty under the
law and the certainty that he will serve such sentence. Not infrequently indeed an
accused pleads guilty in the hope of a lenient treatment or upon bad advice or because
of promises of the authorities or parties of a lighter penalty should he admit guilt or
express remorse. It is the duty of the judge to see to it that the accused does not labor
under these mistaken impressions.

(5) Require the accused to fully narrate the incident that spawned the charges against him
or make him reenact the manner in which he perpetrated the crime, or cause him to
supply missing details or significance.192[27]

In People vs. Ostia,193[28] we held that the trial court is also required to probe thoroughly into the
reasons or motivations, as well as the facts and circumstances for a change of plea of the accused
and his comprehension of his plea; explain to him the elements of the crime for which he is
charged as well as the nature and effect of any modifying circumstances attendant to the
commission of the offense, inclusive of mitigating and aggravating circumstances, as well as the
qualifying and special qualifying circumstances, and inform him of the imposable penalty and
his civil liabilities for the crime for which he would plead guilty to.194[29]
In this case, the trial court failed to make a searching inquiry into the appellants voluntariness
and full comprehension of his plea of guilty. This is evident by the transcript of stenographic
notes taken on November 5, 1998:

ATTY. MANALO

Your Honor, at todays reception of defense evidence, accused informed this representation that
he will no longer present evidence and instead willing to change his plea from not guilty to that
of guilty. This accuseds representation is therefore praying that he be allowed to change his plea
from that of not guilty to guilty.

COURT

You better confer with your client and explain to him the consequences of his intended change of
plea from not guilty to that of guilty.

ATTY. MANALO

Yes, Your Honor.

COURT (to the accused)

Is your counsels manifestation true, that you would like to change your plea from not guilty to
that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. 97-386 and
97-388?

ACCUSED

Yes, Your Honor.

COURT
(to the accused)

You talk with your lawyer and think twice before asking the court to change your plea of not
guilty to that of guilty. The Court will call your case again.

COURT
(to the accused)

Mr. Ulit, earlier your counsel informed the court that you would like to change your plea from
not guilty to that of guilty, in Criminal Case No. 97-385, for rape and Criminal Case No. 97-387,
for Acts of Lasciviousness, do you affirm the manifestation of your counsel?

ACCUSED

Yes, Your Honor.


COURT
(to accused)

Do you know that you are accused here for the crime of rape, a capital offense which carries with
it a capital punishment?

ACCUSED

Yes, Your Honor.

COURT
(to accused)

Despite your knowledge that you are charged with a capital offense which carries with it a
capital penalty you still insists that you are pleading guilty?

ACCUSED

Yes, Your Honor.

COURT (to accused)

Was there anyone who forced you to change your plea of not guilty to that of guilty?

ACCUSED

None, Your Honor.

COURT
(to accused)

Do you know that by pleading guilty you will be sentenced in accordance with [what] the law
provides?

ACCUSED

Yes, Your Honor.

COURT

(to accused)

Do you know that the penalty provided for by law is death penalty because the Information states
that the victim is eleven years old and your niece and that you used a deadly weapon in the
commission of the rape?
ACCUSED

Yes, Your Honor. I am willing to plead guilty.

COURT

Alright, arraign the accused.195[30]

First. The trial court did not ask the appellant his reasons for changing his plea, from not guilty to
that of guilty, and the cogent circumstances that led him to decide to do so.

Second. It appears in the Informations filed by the Public Prosecutor that the appellant opted not
to avail himself of his right to a regular preliminary investigation and refused to execute a waiver
under Article 125 of the Revised Penal Code. The records also show that the appellant executed
a Sinumpaang Salaysay while detained at the barangay hall where he confessed to having raped
the victim in February 1997 and March 2, 1997. However, the trial court did not ask the
appellant whether he was assisted by counsel when he was brought to the Office of the Public
Prosecutor for inquest investigation. Neither did the court a quo inquire about the circumstances
and the appellants reasons for refusing to execute the said waiver.

The records show that when the prosecution offered the appellants Sinumpaang Salaysay in
evidence to prove that he confessed to having raped the victim in February 1997 and March 2,
1997, the appellant objected thereto on the ground that he was not assisted by counsel and that he
was coerced into signing the same.

Third. The trial court also failed to ascertain from the appellant whether he was assisted by
counsel when he executed his Sinumpaang Salaysay while detained at the barangay hall; and, if
he was not so assisted by counsel, whether he had waived his right thereto, before and when he
signed his Sinumpaang Salaysay.

Fourth. The trial court failed to ask the appellant why he was pleading guilty to a rape committed
in November 1996, when in his Sinumpaang Salaysay,196[31] he confessed to having raped the
victim only in February 1997 and March 2, 1997. The appellant did not admit having raped her
in November 1996 as alleged in the Information in Criminal Case No. 97-385. The trial court did
not even inquire from the appellant who prepared and typed his Sinumpaang Salaysay and if the
contents of his statement were explained to him before he signed the same.

Fifth. The trial court did not explain the following to the appellant, in plain and simple terms so
as to be understood by him: (a) the elements of the crime of qualified rape; (b) the circumstances
of relationship and the minority of the victim; and (c) that his plea of guilty to qualified rape
would not mitigate the penalty for the crime in light of Article 63 of the Revised Penal Code.
Sixth. It was not explained to the appellant that if convicted of qualified rape, he would be civilly
liable to the victim in the amount of P50,000 as moral damages and P75,000 as civil indemnity
ex delicto.

Seventh. Neither did the trial court inquire from the appellants counsel whether the meaning and
the consequences of a guilty plea were explained to the appellant in a language or dialect known
to and understood by him.

Eight. The trial court failed to delve into and ascertain from the appellant his age, educational
attainment and socio-economic status.

Ninth. The trial court failed to ask the appellant to narrate the facts and circumstances
surrounding the incident of qualified rape as charged in Criminal Case No. 97-385.

Tenth. The appellant was not asked if he desired to adduce evidence in Criminal Case No. 97-
385 in spite of his plea of guilty.

As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because
of the improvidence thereof, and when such plea is the sole basis of the condemnatory
judgment.197[32] However, where the trial court receives, independently of his plea of guilty,
evidence to determine whether the accused committed the crimes charged and the precise degree
of his criminal culpability therefor, he may still be convicted if there is ample proof on record,
not contingent on the plea of guilty, on which to predicate conviction.198[33]

In this case, the prosecution had already rested its case when the appellant decided to change his
plea. In fact, the trial court granted the prosecutions motion that the evidence it had presented be
considered proof of the degree of culpability of the appellant. It is, thus, incumbent upon this
Court to determine whether the evidence adduced by the prosecution in Criminal Case No. 97-
385 is sufficient to establish beyond reasonable doubt the appellants guilt for qualified rape.

In determining the guilt of the accused in rape cases, the Court is guided by the following
considerations: (a) that an accusation of rape can be made with facility; it is difficult to prove,
but more difficult for the person accused, though innocent, to disprove; (b) that in view of the
intrinsic nature of the crime which usually involves two persons, the testimony of the
complainant must be scrutinized with extreme caution; and (c) that the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the
weakness of the evidence of the defense.199[34] It, likewise, bears stressing that in all criminal
prosecutions, without regard to the nature of the defense which the accused may raise, the burden
of proof remains at all times upon the prosecution to establish his guilt beyond reasonable
doubt.200[35]

The Prosecution Adduced Proof


of the Appellants Guilt Beyond
Reasonable Doubt of the Crime
of Rape in Criminal Case
No. 97-385

We have reviewed the evidence on record and we are convinced that the prosecution adduced
proof beyond reasonable doubt that the appellant raped the victim in November 1996. The victim
declared in her sworn statement, on direct examination and her testimony on clarificatory
questions made by the trial court, that indeed, the appellant raped her in November 1996. Quoted
hereunder is the testimony of Lucelle on direct and on re-direct examination:

Fiscal

Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa iyo?

A Ginahasa niya ako.

Q Ilang ulit kang ginahasa?

A Marami po.

Q Kailan ka ginahasa ng tiyuhin mo?

A November po.

Q 19?

A 1996, po.

Q Saan ka ginahasa?

A 7104 San Maximo St., Makati City, po.201[36]

Fiscal

Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng Tito Ely mo noong


Nobyembre 1996?
A Alas onse po ng gabi.

Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya sa trabaho?

A Wala na po.

Q Saang lugar ka ginahasa?

A Sa 7104 San Maximo St.

Q Sa loob ba ng bahay?

A Opo.

Q Saang parte ng bahay ka ginahasa ng Tito mo?

A Sa kuwarto po.202[37]

...

COURT

Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong Tito. Saan ka ginahasa ng
Tito mo?

A Sa 7104 San Maximo St., po.

Q Doon din sa bahay na iyong tinitirhan?

A Opo.203[38]

In her Sworn Statement,204[39] Lucelle narrated in detail how the appellant ravished her:

06. T: Kailan ka unang senalbahe ng iyong TITO ELY?


S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga bandang 6:00 ng
gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang po ako nang
maramdaman ko na may humahalik sa aking pisngi, at nang ako po ay magising ay nakita ko po
si TITO ELY na may hawak na balisong na humigit kumulang po sa 10 pulgada ang haba na
nakatutok sa aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung ako
daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO ELY) ako.
Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang
short pants at pumatong na po sa akin. Ipinasok po ni TITO ELY and kanyang (TITO ELY) ari sa
aking PEPE at ako po ay nasaktan at umiyak na lang po ako at nang makaraos po si TITO ELY
ay umalis na lang .205[40]

We do not agree with the ruling of the trial court that the contents of the sworn statement of
Lucelle are hearsay, simply because she did not testify thereon and merely identified her
signatures therein. By hearsay evidence is meant that kind of evidence which does not derive its
value solely from the credence to be attributed to the witness herself but rests solely in part on
the veracity and competence of some persons from whom the witness has received the
information.206[41] It signifies all evidence which is not founded upon the personal knowledge of
the witness from whom it is elicited, and which, consequently, is not subject to cross-
examination.207[42] The basis for the exclusion appears to lie in the fact that such testimony is not
subject to the test which can ordinarily be applied for the ascertainment of truth of testimony,
since the declarant is not present and available for cross-examination. In criminal cases, the
admission of hearsay evidence would be a violation of the constitutional provision while the
accused shall enjoy the right to confront and cross-examine the witness testifying against
him.208[43] Generally, the affidavits of persons who are not presented to testify on the truth of the
contents thereof are hearsay evidence.209[44] Such affidavit must be formally offered in evidence
and accepted by the court; otherwise, it shall not be considered by the court for the simple reason
that the court shall consider such evidence formally offered and accepted.210[45]

In this case, Lucelle testified on and affirmed the truth of the contents of her sworn statement
which she herself had given. As gleaned from the said statement, she narrated how and when the
appellant raped and subjected her to lascivious acts. She was cross-examined by the appellants
counsel and answered the trial courts clarificatory questions. The prosecution offered her sworn
statement as part of her testimony and the court admitted the same for the said purpose without
objection on the part of the appellant.

The Prosecution Proved Beyond


Reasonable Doubt that the Appellant
Raped the Victim in February 1997
The trial court convicted the appellant of rape in Criminal Case No. 97-386 on the basis of
Lucelles sworn statement,211[46] the testimony of her mother, Lourdes Serrano, the appellants
statement212[47] executed in the Barangay Chairmans Office, and the testimony of Dr. Armie
Soreta-Umil. We agree with the trial courts findings and conclusion.

First. In Lucelles sworn statement,213[48] she declared that the appellant subjected her to sexual
abuse.

Second. Lourdes saw Lucelle in bed (papag) in Marinas room, covered with a blanket beside the
appellant who was wearing a pair of short pants and undershirt. He slid down from the papag,
went under the bed and slipped outside. When Lourdes removed the blanket, she saw Lucelle
trembling with fear, lying sidewise, her knees near her chin (nakabaluktot).

Third. The appellant admitted to the barangay chairman on March 5, 1997, that he raped Lucelle
in February 1997:

Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid na babae,
pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na anyong natutulog.
Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng kanyang katawan at nang siyay
magising tinakot ko siyang huwag sisigaw, habang siya ay aking hinuhubaran ng Short na
kasama pati ang kanyang panty. Nagpupumiglas siya habang ako ay nakadagan sa kanya na
noon din ay hinuhubad ko ang aking brief. Pinaghahalikan ko po siya habang siya ay
nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Umiiyak
siya habang ang aking ari ay labas masok sa kanyang ari. Nang ako ay makaraos ay tinakot ko
siyang huwag magsusumbog sa kanyang mga magulang.214[49]

Although the appellant was not assisted by counsel at the time he gave his statement to the
barangay chairman and when he signed the same, it is still admissible in evidence against him
because he was not under arrest nor under custodial investigation when he gave his
statement.215[50]

The exclusionary rule is premised on the presumption that the defendant is thrust into an
unfamiliar atmosphere and runs through menacing police interrogation procedures where the
potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by
the 1971 Constitutional Convention, this covers investigation conducted by police authorities
which will include investigations conducted by the municipal police, the PC and the NBI and
such other police agencies in our government.216[51] The barangay chairman217[52] is not deemed a
law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the
Constitution. Under these circumstances, it cannot be successfully claimed that the appellants
statement before the barangay chairman is inadmissible.

The Sufficiency of Evidence on


Lucelles Relationship with the
Appellant, her Minority, and the
Propriety of the Imposition of
the Death Penalty

The appellants conviction for two counts of rape having been duly established by the
prosecution, we now come to the question of the penalty to be meted upon him.

Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,
which was the law in effect at the time of the commission of the subject rapes, provides in part:

ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge
of a woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

...

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim.

...
The qualifying circumstances of minority and relationship must concur. More importantly, they
must be both alleged and proved, in order to qualify the crime of rape and warrant the imposition
of the death penalty.218[53] In addition to the requirement that the qualifying and aggravating
circumstance must be specifically alleged in the information, it must be established with
certainty that the victim was below eighteen (18) years of age or that she was a minor at the time
of the commission of the crime. It must be stressed that the severity of the death penalty,
especially its irreversible and final nature once carried out, makes the decision-making process in
capital offenses aptly subject to the most exacting rules of procedure and evidence.219[54]

The relationship between the appellant and the victim has been adequately established. The
allegations in both Informations that the appellant is the victims uncle, a relative by
consanguinity within the third civil degree is specific enough to satisfy the special qualifying
circumstance of relationship.

In People v. Ferolino,220[55] we said

In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy
the special qualifying circumstances of relationship. If the offender is merely a relation - not a
parent, ascendant, step-parent, or guardian or common law spouse of the mother of the victim - it
must be alleged in the information that he is a relative by consanguinity or affinity [as the case
may be] within the third civil degree. That relationship by consanguinity or affinity was not
alleged in the informations in these cases. Even if it was, it was still necessary to further allege
that such relationship was within the third civil degree.221[56]

The prosecutions evidence has also shown that the appellant is the victims uncle, being the older
brother of the victims mother, a fact that the appellant himself admitted.

The same cannot, however, be said with respect to the age of the victim. In People v.
Pruna,222[57] the Court, after noting the divergent rulings on proof of age of the victim in rape
cases, set out certain guidelines in appreciating age, either as an element of the crime or as
qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified
true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victim's mother or a member of the family either by affinity or consanguinity who
is qualified to testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be


proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be


proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to


be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony


of the victim's mother or relatives concerning the victim's age, the complainant's
testimony will suffice provided that it is expressly and clearly admitted by the
accused.

5. It is the prosecution that has the burden of proving the age of the offended party.
The failure of the accused to object to the testimonial evidence regarding age shall
not be taken against him.

6. The trial court should always make a categorical finding as to the age of the
victim.223[58]

In the present case, no birth certificate or any similar authentic document was presented and
offered in evidence to prove Lucelles age. While the victim testified that she was born on
February 19, 1986, therefore 11 years old when the appellant twice raped her, the same will not
suffice as the appellant did not expressly and clearly admit the same as required by Pruna. The
corroboration of Lucelles mother as to her age is not sufficient either, as there is no evidence that
the said certificate of birth was lost or destroyed or was unavailable without the fault of the
prosecution. The fact that there was no objection from the defense regarding the victims age
cannot be taken against the appellant since it is the prosecution that has the burden of proving the
same. Moreover, the trial court did not make a categorical finding of the victims minority,
another requirement mandated by Pruna.
Another issue that needs to be settled is the third paragraph of Article 335 of the Revised Penal
Code, as amended, which provides that, [w]henever rape is committed with the use of a deadly
weapon or by two or more persons, the imposable penalty shall be reclusion perpetua to death.

The evidence on record shows that the appellant raped Lucelle with the use of a deadly weapon
in both rape incidents as alleged in both informations, and under Article 335 of the Revised
Penal Code, as amended by Republic Act No. 7659, the imposable penalty for the crime is
reclusion perpetua to death.

In the determination of whether the death penalty should be imposed on the appellant, the
presence of an aggravating circumstance in the commission of the crime is crucial. In the cases at
bar, although the relationship of uncle and niece between the appellant and the victim has been
duly proven, the alternative circumstance of relationship under Article 15 of the Revised Penal
Code cannot be appreciated as an aggravating circumstance against the appellant. While it is true
that the alternative circumstance of relationship is always aggravating in crimes against chastity,
regardless of whether the offender is a relative of a higher or lower degree of the offended party,
it is only taken into consideration under Article 15 of the Revised Penal Code when the offended
party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or
relative by affinity in the same degree of the offender. The relationship of uncle and niece is not
covered by any of the relationships mentioned.224[59]

Hence, for the prosecutions failure to prove the age of the victim by any means set forth in
Pruna, and considering that the relationship of uncle and niece is not covered by any of the
relationships mentioned in Article 15 of the Revised Penal Code, as amended, the appellant can
only be convicted of rape in its aggravated form, the imposable penalty for which is reclusion
perpetua to death.

There being no modifying circumstances attendant to the commission of the crimes, the appellant
should be sentenced to suffer reclusion perpetua for each count of rape, conformably to Article
69 of the Revised Penal Code.

The victim is entitled to moral damages without need of proof other than the fact of the rape
itself because it is assumed that the victim has suffered moral injuries entitling her to such an
award.225[60] We find the trial courts award of P50,000 as moral damages to the victim in each
rape to be in order.

However, the trial court erred in not awarding civil indemnity to the victim in each case, the
same being mandatory upon the finding of the fact of rape.226[61] Thus, this Court awards the
victim the sum of P50,000 as civil indemnity for each count of rape.
In addition to this, appellant is ordered to pay the victim P25,000 as exemplary damages, the
qualifying aggravating circumstance of use of a deadly weapon having attended the commission
of the crime.227[62]

WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch 62, in
Criminal Cases Nos. 97-385 to 97-388 is AFFIRMED with MODIFICATION. The appellant
Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape in
Criminal Cases Nos. 97-385 and 97-386, and in each case, is hereby sentenced to suffer the
penalty of reclusion perpetua and ordered to pay the victim, Lucelle Serrano, P50,000 as moral
damages; P50,000 as civil indemnity; and P25,000 as exemplary damages. Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,


Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

People of the Philippines vs Sayaboc

EN BANC

[G.R. No. 147201. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENJAMIN SAYABOC y SEGUBA,


PATRICIO ESCORPISO y VALDEZ, MARLON BUENVIAJE y PINEDA, and MIGUEL
BUENVIAJE y FLORES, appellants.

DECISION

DAVIDE, JR., C.J.:

Before us is the decision of 9 November 2000 of the Regional Trial Court of Bayombong, Nueva
Vizcaya, Branch 27, in Criminal Case No. 2912 finding appellant Benjamin Sayaboc guilty
beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of
death; and (2) finding appellant Marlon Buenviaje guilty as principal and appellants Miguel
Buenviaje and Patricio Escorpiso guilty as accomplices in the crime of homicide.

On 17 April 1995, an information was filed charging Benjamin Sayaboc, Patricio Escorpiso,
Marlon Buenviaje, and Miguel Buenviaje with murder, the accusatory portion of which reads as
follows:
That on or about December 2, 1994, in the Municipality of Solano, Province of Nueva Vizcaya,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping each other, and who were then armed
with a firearm, did then and there willfully, unlawfully and feloniously with evident
premeditation, by means of treachery and with intent to kill, attack, assault and use personal
violence upon the person of Joseph Galam y Antonio, by then and there suddenly firing at the
said Joseph Galam y Antonio who has not given any provocation, thereby inflicting upon him
mortal wounds which were the direct and immediate cause of his death thereafter, to the damage
and prejudice of his heirs.228[1]

At their arraignment, appellants Benjamin Sayaboc, Patricio Escorpiso, and Miguel Buenviaje
pleaded not guilty to the charge of murder. Marlon Buenviaje, who was arrested only on 10 July
1997, also pleaded not guilty upon his arraignment.

The evidence for the prosecution discloses as follows:

At about 9:00 a.m. of 13 August 1994, while prosecution witness Abel Ramos was at a
vulcanizing shop in Barangay Quezon, Solano, Nueva Vizcaya, he heard one Tessie Pawid
screaming from across the road: Enough, enough, enough! In front of her were Marlon Buenviaje
and Joseph Galam, who were engaged in a fisticuff. By the time Pawid was able to subdue the
two men by standing between them and embracing Galam, Buenviajes face was already bloodied
and Galams shirt collar torn. As Buenviaje was leaving, he turned to face Galam and, with his
right index finger making a slicing motion across his throat, shouted: Putang-ina mo Joseph, may
araw ka rin, papatayin kita. Galam retorted, Gago, traydor, gold digger, halika. Buenviaje did
not respond anymore and left on a tricycle.229[2]

More than three months thereafter, or on 2 December 1994, Galam was shot to death at the
Rooftop Disco and Lodging House (Rooftop, for short) owned by him, which was located at
Barangay Quezon, Solano, Nueva Vizcaya.

According to a waitress of the Rooftop Diana Grace Sanchez Jaramillo, earlier or at 3:00 p.m. of
that fateful day, a man whom she later identified as Benjamin Sayaboc rang the doorbell of the
Rooftop and asked whether a woman wearing a green t-shirt had checked in. She answered in the
negative. As she was about to leave, Sayaboc asked another question, What time does your
bosing arrive? She replied that she did not know. She then went to the second floor of the
establishment.230[3]

Tessie Pilar, the caretaker of the lodging house, narrated that between 5:30 and 5:45 p.m.
Sayaboc, who was still seated in the swing beside the information counter with his hands tucked
in the pocket of his jacket, ordered a bottle of beer. She then went up to the kitchen, but was
delayed in delivering the beer because she gave some instructions to the dishwasher. When she
gave the beer to Benjamin, the latter was angry and asked why it took her so long to bring the
beer. Thereafter, she went upstairs and chatted with Jaramillo and some other waitresses. Then
the vehicle of Joseph Galam arrived.231[4]

Shortly thereafter, they heard four gunbursts emanating from the ground floor of the building.
When Jaramillo looked down, she saw Sayaboc shooting Galam, causing the latter to fall to the
ground face up, with blood spurting out of his chest. Sayaboc forthwith ran out and disappeared
into the darkness.232[5]

Meanwhile, at about 5:30 p.m. of that fateful day, as Joselito Parungao, Chief Barangay Tanod
of Barangay Quezon, Solano, Nueva Vizcaya, was on his way to the Kowloon Restaurant
located along the national road, he saw Marlon Buenviaje with his father Miguel Buenviaje and
Patricio Escorpiso. The three were aboard a tricycle parked in a vacant lot between the Rooftop
and Diego Theater. The younger Buenviaje was on the drivers seat, while the older Buenviaje
and Escorpiso were inside the sidecar. Parungao ordered pancit bihon. While he was waiting
outside of the restaurant, he noticed that the tricycle was still parked in the vacant lot, and the
three occupants thereof were talking with each other. After getting his order and while he was
getting out of the restaurant, Parungao heard four gunshots coming from behind the Rooftop
building. He thereafter saw a person, whom he later came to know as Benjamin Sayaboc,
walking briskly toward the tricycle and then rode behind Marlon Buenviaje. Afterwards, the
tricycle sped off towards the center of the town.233[6]

The employees of the Rooftop lost no time in bringing Galam to a hospital, where he was
declared dead on arrival.234[7] Dr. Antonio R. Labasan, who conducted an autopsy on his cadaver,
found four gunshot wounds and opined that the first two of which were inflicted from behind and
the last two were frontal.235[8]

That evening, SPO4 Roberto Cagungao, Chief Investigator of the Solano Police Station, assigned
some investigators to go to the scene of the crime to gather evidence. At about 10:00 to 11:00
p.m., he and Lt. Alejandro Parungao brought Pilar and Jaramillo to the Philippine National
Police (PNP) Crime Laboratory in Camp Crame, Quezon City. Pilar and Jaramillo were
interviewed by the cartographic artist, who thereafter drew a cartographic sketch showing the
face of the assailant.236[9]
On 8 March 1995, Pilar and Jaramillo identified Benjamin Sayaboc at the PNP Provincial
Headquarters in Bayombong as the gunman who shot Joseph Galam to death.237[10]

On the afternoon of that day, SPO4 Cagungao was called to the Provincial Command
Headquarters in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc. When he arrived
at the headquarters he saw Sayaboc being interviewed by reporters inside the investigation room.
He then brought Sayaboc to the inner part of the room. Before taking the statement of Sayaboc,
he advised the latter of his constitutional rights. Then Sayaboc told him that he wanted to have a
counsel of his own choice. But since Sayaboc could not name one, Cagungao asked the police
officers to get a lawyer. Half an hour later, the police officers brought Atty. Rodolfo Cornejo of
the PAO, who then conferred with Sayaboc for a while. After Cagungao heard Sayaboc say,
okay, he continued the investigation, during which Atty. Cornejo remained silent the entire time.
However, Cagungao would stop questioning Sayaboc whenever Atty. Cornejo would leave to go
to the comfort room.238[11] That night Sayaboc executed an extrajudicial confession239[12] in
Ilocano dialect. He therein confessed to killing Joseph Galam at the behest of Marlon Buenviaje
for the sum of P100,000. He likewise implicated Miguel Buenviaje and Patricio Escorpiso. The
confession was also signed by Atty. Cornejo and attested to by one Fiscal Melvin Tiongson.

At the hearing on 22 June 1999, after the prosecution rested its case, 1counsel for accused Mike
Buenviaje, Marlon Buenviaje and Patricio Escorpiso manifested that he be given fifteen days to
file a motion for leave to admit demurrer to the evidence.240[13] The trial court acceded. But
instead of filing such motion first, he filed a Demurrer to Evidence on 12 July 1999.241[14] The
motion for leave to file the pleading was filed the next day only.242[15]

The trial court denied the demurrer to evidence in an order243[16] issued on 16 August 1999.
Further, it ruled that because of they did not seek nor were granted express leave of court prior to
their filing of the demurrer to evidence, the Buenviajes and Escorpiso were deemed to have
submitted their case for judgment in accordance with Section 15, Rule 119 of the Rules of Court.
Thus, only Sayaboc was allowed to proceed with the presentation of his defense.

Sayaboc denied having committed the crime and proffered the defense of alibi. He also flatly
denied having met Atty. Cornejo or having been informed of his rights. He testified to having
been beaten by six or seven police officers in the investigating room, who then coerced him to
confess to having killed Galam.244[17] Apart from his testimony, he submitted a handwritten
statement dated 20 March 1995245[18] and an affidavit dated 10 April 1995246[19] to support his
claim of police brutality and retraction of his confession.

In its decision dated 9 November 2000,247[20] the trial court found Benjamin Sayaboc guilty of the
crime of murder, with treachery as the qualifying circumstance and craft and price or reward as
aggravating circumstances. It then sentenced him to the maximum penalty of death. As for
Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso, the court held that the treachery
employed by Sayaboc could not be taken against them and, therefore, declared them guilty of the
crime of homicide only, with the first as principal and the two others as accomplices. Each was
sentenced to suffer an indeterminate penalty and to pay solidarily with Sayaboc the amounts of
P115,000 as actual damages; P25,000 as moral damages; and the costs of the suit in favor of the
heirs of Joseph Galam.

From this decision, the appellants raise the following errors:

THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT SAYABOC GUILTY


BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND SENTENCING
HIM TO DEATH.

II

ASSUMING ARGUENDO THAT ACCUSED SAYABOC IS GUILTY, HE IS GUILTY


ONLY OF THE CRIME OF HOMICIDE.

III

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL


CONFESSION OF ACCUSED SAYABOC WHEN IT WAS TAKEN WITHOUT THE
ASSISTANCE OF A COMPETENT AND INDEPENDENT COUNSEL NOR BY AN
EFFECTIVE AND VIGILANT COUNSEL.

IV

THE TRIAL COURT ERRED IN FINDING FATHER AND SON BUENVIAJE AND
ACCUSED ESCORPISO LIKEWISE GUILTY WHEN IT DENIED THEM THEIR
CONSTITUTIONAL RIGHT TO BE HEARD BY THEMSELVES AND COUNSEL AFTER
THEY FILED THEIR DEMURRER TO EVIDENCE ALLEGEDLY WITHOUT FIRST
SEEKING EXPRESS LEAVE OF COURT.

In the first and second assigned errors, the appellants contend that the crime committed by
Sayaboc was homicide only, there being no proof of treachery because the two eyewitnesses did
not see the commencement of the shooting. Besides, treachery, as well as evident premeditation,
was not specifically designated as a qualifying circumstance in the information. Neither can the
aggravating circumstances of craft and price or reward be appreciated because they were not
alleged in the information, albeit proved during trial. Sections 8 and 9 of Rule 110 of the 2000
Rules of Criminal Procedure, which require aggravating and qualifying circumstances to be
alleged in the information, are beneficial to the accused and should, therefore, be applied
retroactively.

As to the third assigned error, the appellants argue that the extrajudicial confession of Sayaboc
may not be admitted in evidence against him because Atty. Cornejo, the PAO lawyer who was
his counsel during the custodial investigation, was not a competent, independent, vigilant, and
effective counsel. He was ineffective because he remained silent during the entire proceedings.
He was not independent, as he was formerly a judge in the National Police Commission, which
was holding court inside the PNP Command of Bayombong, Nueva Vizcaya.

Finally, appellants Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso claim that they
were denied due process because they were not able to present evidence in their defense. They
ask this Court to relax the rule of criminal procedure in favor of enforcing their constitutional
right to be heard by themselves and counsel.

On the other hand, the Office of the Solicitor General (OSG) maintains that Sayabocs
extrajudicial confession that he shot the victim in the back is adequate proof of treachery.
Invoking People v. Aquino,248[21] the OSG contends that for treachery to be considered as a
qualifying circumstance, it needs only to be specifically alleged in the information and does not
have to be preceded by the words qualifying or qualified by. As to the proven circumstances of
craft and price or reward, the same cannot be appreciated because they were not specifically
alleged in the information, as required by the 2000 Rules of Criminal Procedure, which are
applicable to actions that are pending and undetermined at the time of their passage.

The OSG further asserts that Sayabocs extrajudicial confession is admissible in evidence against
him, since it was made after he was informed of, and accorded, his constitutional rights,
particularly the right to an independent counsel of his own choice. No evidence was adduced
during the trial to substantiate the claim that Atty. Cornejo used to be connected with the
NAPOLCOM. Moreover, this claim was made for the first time in this appeal, and was based
merely on an information furnished by defense counsel Atty. Virgil Castro (now deceased) to
Sayabocs counsel in this appeal, which makes the said information hearsay twice removed.
As to the fourth assigned error, the OSG counters that no exceptional circumstance exists in this
case that may warrant the relaxation of the rule that the denial of a unilateral demurrer to
evidence carries with it a waiver of the accuseds right to present evidence.

Beginning with the admissibility of Sayabocs extrajudicial confession, we hold that such cannot
be used in evidence in this case.

Section 12 of Article III of the 1987 Constitution provides:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.

Jurisprudence provides that extrajudicial confessions are presumed to be voluntary.249[22] The


condition for this presumption, however, is that the prosecution is able to show that the
constitutional requirements safeguarding an accuseds rights during custodial investigation have
been strictly complied with, especially when the extrajudicial confession has been denounced.
The rationale for this requirement is to allay any fear that the person being investigated would
succumb to coercion while in the unfamiliar or intimidating environment that is inherent in
custodial investigations. Therefore, even if the confession may appear to have been given
voluntarily since the confessant did not file charges against his alleged intimidators for
maltreatment,250[23] the failure to properly inform a suspect of his rights during a custodial
investigation renders the confession valueless and inadmissible.251[24]

In this case, contrary to SPO4 Cagungaos claim that he conferred with Sayaboc for half an hour
informing him about his constitutional rights, the extrajudicial confession provides only the
following:

PRELIMINARY: I would like to inform you Mr. Sayaboc that questions will be
asked to you regarding an incident last December 2, 1994 at the
Rooftop, Brgy. Quezon, Solano, Nueva Vizcaya, in connection
with the shooting of Joseph Galam, owner of the said Disco House
as a result of his death. Before questions will be asked [of] you I
would like to inform you about your ri[g]hts under the new
Constitution of the Philippines, as follows: That you have the right
to remain silent or refuse to answer the questions which you think
will incriminate you; That you have the right to seek the services
of a counsel of your own choice or if not, this office will provide
you a lawyer if you wish.

QUESTIONS: After informing you all your constitutional rights, are you willing
to give your true statement regarding the death of Joseph Galam?

ANSWER: Yes, sir.

QUESTIONS: Do you want to get a lawyer to assist in this investigation?

ANSWER: Yes, sir. I want to seek the assistance of Atty. Rodolfo Cornejo.

QUESTIONS: Atty. Rodolfo Cornejo is here now, do you want him to assist you
in this investigation?

ANSWER: Yes, sir. 252[25]

Apart from the absence of an express waiver of his rights, the confession contains the passing of
information of the kind held to be in violation of the right to be informed under Section 12,
Article III of the Constitution. In People v. Jara,253[26] the Court explained:

The stereotyped advice appearing in practically all extrajudicial confessions which are later
repudiated has assumed the nature of a legal form or model. Police investigators either
automatically type it together with the curt Opo as the answer or ask the accused to sign it or
even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does
not create an impression of voluntariness or even understanding on the part of the accused. The
showing of a spontaneous, free, and unconstrained giving up of a right is missing.

The right to be informed requires the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle.254[27] It should allow
the suspect to consider the effects and consequences of any waiver he might make of these
rights. More so when the suspect is one like Sayaboc, who has an educational attainment of
Grade IV, was a stranger in Nueva Vizcaya, and had already been under the control of the police
officers for two days previous to the investigation, albeit for another offense.

We likewise rule that Sayaboc was not afforded his constitutional right to a competent counsel.
While we are unable to rule on the unsubstantiated claim that Atty. Cornejo was partial to the
police, still, the facts show through the testimonies of Sayaboc and prosecution witness SPO4
Cagungao that Atty. Cornejo remained silent throughout the duration of the custodial
investigation. The trial court attributed the silence of Atty. Cornejo to the garrulous nature and
intelligence of Sayaboc, thus:

As already stated, Sayaboc was a garrulous man and intelligent. It was in his character for him to
want to be a central figure in a drama, albeit tragic for others. He would do what he wanted to do
regardless of the advice of others. Hence, Atty. Cornejo could only advise him of his
constitutional rights, which was apparently done. The said counsel could not stop him from
making his confession even if he did try.255[28]

We find this explanation unacceptable. That Sayaboc was a garrulous man who would do what
he wanted to do regardless of the advice of others is immaterial. The waiver of a right is within
the rights of a suspect. What is lacking is a showing, to the satisfaction of this Court, of a faithful
attempt at each stage of the investigation to make Sayaboc aware of the consequences of his
actions. If anything, it appears that Sayabocs counsel was ineffectual for having been cowed by
his clients enthusiasm to speak, or, worse, was indifferent to it.

The right to a competent and independent counsel means that the counsel should satisfy himself,
during the conduct of the investigation, that the suspect understands the import and consequences
of answering the questions propounded. In People v. Deniega,256[29] we said:

The desired role of counsel in the process of custodial investigation is rendered meaningless if
the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of
the person undergoing questioning. If the advice given is so cursory as to be useless,
voluntariness is impaired.

This is not to say that a counsel should try to prevent an accused from making a confession.
Indeed, as an officer of the court, it is an attorneys duty to, first and foremost, seek the truth.
However, counsel should be able, throughout the investigation, to explain the nature of the
questions by conferring with his client and halting the investigation should the need arise. The
duty of a lawyer includes ensuring that the suspect under custodial investigation is aware that the
right of an accused to remain silent may be invoked at any time.

We understand the difficulty and frustration of police investigators in obtaining evidence to bring
criminals to justice. But even the hardest of criminals have rights that cannot be interfered with.
Those tasked with the enforcement of the law and who accuse those who violate it carry the
burden of ensuring that all evidence obtained by them in the course of the performance of their
duties are untainted with constitutional infirmity. The purpose of the stringent requirements of
the law is to protect all persons, especially the innocent and the weak, against possible
indiscriminate use of the powers of the government. Any deviation cannot be tolerated, and any
fruit of such deviation shall be excluded from evidence.
For these reasons, the extrajudicial confession of Sayaboc cannot be used in evidence against
him. We hold, however, that the prosecution has discharged its burden of proving his guilt for
the crime of homicide.

From the records of the case, there can be no doubt that Sayaboc shot and killed Galam in the
early evening of 2 December 1994. He was seen waiting at the Rooftop from 3:00 to 6:00 p.m. of
that day, shooting Galam shortly after the latters arrival, and fleeing from the scene of the crime
to a waiting tricycle. Credible witnesses described Sayabocs appearance to the police soon after
the shooting incident and prepared affidavits about the incident. They identified Sayaboc at the
police station while he was in custody, during the preliminary investigation, and, again, in open
court. Such positive identification constitutes more than sufficient direct evidence to uphold the
finding that Sayaboc was Galams killer. It cannot just be rebutted by Sayabocs bare denial and
weak alibi.

Appellants claim that the information against them is insufficient for failure to specifically state
that treachery and evident premeditation were qualifying circumstances holds no water. In
People v. Aquino,257[30] we held that even after the recent amendments to the Rules of Criminal
Procedure, qualifying circumstances need not be preceded by descriptive words such as
qualifying or qualified by to properly qualify an offense. Nevertheless, from our review of the
case, we find that neither evident premeditation nor treachery has been sufficiently proved to
qualify the crime to murder.

There is treachery when the offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
Thus, two conditions must be present: (1) at the time of the attack, the victim was not in a
position to defend himself; and (2) the offender consciously adopted the particular means,
method or form of attack employed by him. For treachery to be appreciated, it must be present
and seen by the witness right at the inception of the attack. Where no particulars are known as to
how the killing began, its perpetration with treachery cannot merely be supposed. 258[31]

In this case, the trial court concluded that the fact that the witnesses did not hear any shout or
conversation between the assailant and the victim immediately before the attack could only mean
that Sayaboc had approached his victim through stealth.259[32] While not improbable, that
conclusion is merely an inference. The fact remains that none of the witnesses testified as to how
the aggression began. The witnesses testified having heard four shots, the last two of which were
seen as having been fired while Sayaboc was facing Galam. The autopsy conducted by Dr.
Labasan reveals two frontal wounds at the thigh and the shoulder, and two wounds on the right
side of Galams back. Although it is plausible that the initial shots were fired from behind, such
inference is insufficient to establish treachery.260[33]

Neither can we appreciate evident premeditation as a qualifying circumstance. Evident


premeditation exists when it is shown that the execution of a criminal act is preceded by cool
thought and reflection upon the resolution to carry out the criminal intent. The requisites of
evident premeditation are (1) the time when the accused determined to commit the crime; (2) an
act manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of
time between such determination and execution to allow him to reflect upon the circumstances of
his act.261[34]

Without the extrajudicial confession narrating when Sayaboc was hired to kill Galam, the
testimony that the former inquired about the latter while waiting in the Rooftop from 3:00 p.m. to
6:00 p.m. of that fateful day does not prove the time when Sayaboc decided to kill Galam.
Settled is the rule that when it is not shown how and when the plan to kill was hatched or what
time had elapsed before that plan was carried out, evident premeditation cannot be
considered.262[35]

The aggravating circumstances of craft and price or reward, even if proved, can neither be
considered because they were not specifically alleged in the information. Section 8, Rule 110 of
the 2000 Revised Rules of Criminal Procedure requires that the information specify the
aggravating circumstances attending the commission of the crime for it to be considered in the
imposition of penalty. This requirement is beneficial to an accused and may, therefore, be given
retroactive effect.263[36]

Thus, appellant Benjamin Sayaboc can be found guilty of the crime of homicide only, which is
punishable by reclusion temporal. There being no mitigating or aggravating circumstances
appreciated for or against him, the penalty to be imposed upon him should be in the medium
period. Applying the Indeterminate Sentence Law, he should be meted a penalty whose
minimum is within the range of prision mayor and whose maximum is within the range of
reclusion temporal in its medium period.

We cannot subscribe to the contention of appellants Marlon Buenviaje, Miguel Buenviaje, and
Patricio Escorpiso that the case should be remanded to the trial court because they were denied
the right to be heard by the trial court. It must be remembered that their demurrer to evidence
filed on 12 July 1999 was without prior leave of court. The motion for leave to file the said
pleading was filed only the next day. The filing of the demurrer was clearly without leave of
court. The trial court, therefore, correctly applied the rule on demurrer to evidence found in
Section 15, Rule 119 of the 1985 Rules of Criminal Procedure when it disallowed the
abovementioned appellants to present evidence on their behalf.

The filing of a demurrer to evidence without leave of court is an unqualified waiver of the right
to present evidence for the accused.264[37] The rationale for this rule is that when the accused
moves for dismissal on the ground of insufficiency of evidence of the prosecution evidence, he
does so in the belief that said evidence is insufficient to convict and, therefore, any need for him
to present any evidence is negated. An accused cannot be allowed to wager on the outcome of
judicial proceedings by espousing inconsistent viewpoints whenever dictated by convenience.
The purpose behind the rule is also to avoid the dilatory practice of filing motions for dismissal
as a demurrer to the evidence and, after denial thereof, the defense would then claim the right to
present its evidence.265[38]

The trial court, therefore, correctly applied Section 15, Rule 119 of the 1985 Rules of Criminal
Procedure on demurrer to evidence when it disallowed the abovementioned appellants to present
evidence on their behalf. They cannot now claim that they were denied their right to be heard by
themselves and counsel.

On the basis of the evidence for the prosecution, we find the existence of conspiracy between
Marlon Buenviaje and Sayaboc.

It has been held that price or reward is evidence of conspiracy.266[39] But the same was not
established by competent proof in this case. The extrajudicial confession267[40] and the newspaper
reports268[41] adduced by the prosecution, which both contained Sayabocs statement pointing to
Marlon Buenviaje as the one who paid him P100,000 to kill Galam, are inadmissible in evidence.
The first, as earlier stated, was executed in violation of Sayabocs constitutional rights. The
second are hearsay, since the authors of such reports were not presented as witnesses to affirm
the veracity thereof.269[42]

Conspiracy need not, however, be established by direct proof; it may be shown by circumstantial
evidence.270[43] As correctly found by the trial court and concurred with by the OSG, the
concatenation of circumstantial evidence shows that Marlon Buenviaje conspired with Sayaboc,
thus:
1. On 13 August 1994, Marlon Buenviaje had a fistfight with Joseph Galam, causing him
injuries on his face and prompting him to make a threat to kill the latter;271[44]

2. More than three months later, Galam was killed by Sayaboc, who had no discernible
motive to do so;272[45]

3. Shortly after shooting Galam, Sayaboc joined Marlon Buenviaje and the other appellants
in the tricycle, which was waiting in a vacant lot near the crime scene;273[46]

4. The tricycle driven by Marlon Buenviaje sped away and disappeared;274[47]

5. Marlon Buenviaje became a fugitive from justice for a long time, or until 10 July 1997;
and

6. During the pendency of the case, the relatives of Marlon Buenviaje offered prosecution
eyewitness Diana Grace Jaramillo a job abroad, allowances, and two motorcycles in
consideration of her retraction of her testimony against Sayaboc. 275[48]

Circumstantial evidence is sufficient for conviction when (1) there is more than one
circumstances established; (2) the facts from which the inferences are derived have been proved;
and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. All these requisites are present in the case at bar. Being a conspirator equally
guilty as Sayaboc, Marlon Buenviaje must be meted the same penalty as that of Sayaboc.

However, as to Miguel Buenviaje and Patricio Escorpiso, there is paucity of evidence linking
them to the killing. They might have been with Marlon Buenviaje in that tricycle, but there is
nothing to show that they knew of the conspiracy to kill Galam. Absent any active participation
in furtherance of the common design or purpose to kill Galam, their mere presence near the
crime scene or in the tricycle driven by Marlon Buenviaje does not necessarily make them
conspirators. Even knowledge, acquiescence or approval of the act without the cooperation and
the agreement to cooperate is not enough to establish conspiracy.276[49]

Now on the civil liability of Sayaboc and Marlon Buenviaje. The trial courts award of actual
damages, representing the wake and burial expenses, is reduced to P106,436, this being the
amount supported by receipts. The award of moral damages is, however, increased to P50,000
conformably with current jurisprudence.277[50] In addition, the heirs of the victim are entitled to
P50,000 as civil indemnity ex delicto.

WHEREFORE, the decision of the Regional Trial Court of Bayombong, Nueva Ecija, Branch
27, in Criminal Case No. 2912 is MODIFIED. Appellants Benjamin Sayaboc and Marlon
Buenviaje are found guilty beyond reasonable doubt of the crime of homicide and are each
sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum and to pay jointly
and severally the heirs of Joseph Galam the amounts of P106,436 as actual damages; P50,000 as
civil indemnity; P50,000 as moral damages; and the cost of the suit. Appellants Miguel
Buenviaje and Patricio Escorpiso are hereby ACQUITTED on the ground of reasonable doubt.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,


Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Tanenggee vs People of the Philippines

SECOND DIVISION

G.R. No. 179448, June 26, 2013

CARLOS L. TANENGGEE, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the
December 12, 2006 Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 23653 affirming
with modification the June 25, 1999 Decision3 of the Regional Trial Court (RTC) of Manila,
Branch 30, in Criminal Case Nos. 98-163806-10 finding Carlos L. Tanenggee (petitioner) guilty
beyond reasonable doubt of five counts of estafa through falsification of commercial
documents. Likewise questioned is the CAs September 6, 2007 Resolution4 denying
petitioners Motion for Reconsideration5 and Supplemental Motion for Reconsideration.6

Factual Antecedents
On March 27, 1998, five separate Informations7 for estafa through falsification of commercial
documents were filed against petitioner. The said Informations portray the same mode of
commission of the crime as in Criminal Case No. 98-163806 but differ with respect to the
numbers of the checks and promissory notes involved and the dates and amounts thereof, viz: cralavvonlinelawlibrary

That on or about July 24, 1997, in the City of Manila, Philippines, the said accused, being then a
private individual, did then and there wilfully, unlawfully and feloniously defraud, thru
falsification of commercial document, the METROPOLITAN BANK & TRUST CO.
(METROBANK), represented by its Legal officer, Atty. Ferdinand R. Aguirre, in the following
manner: herein accused, being then the Manager of the COMMERCIO BRANCH OF
METROBANK located at the New Divisoria Market Bldg., Divisoria, Manila, and taking
advantage of his position as such, prepared and filled up or caused to be prepared and filled up
METROBANK Promissory Note Form No. 366857 with letters and figures reading
BD#083/97 after the letters reading PN, with figures reading 07.24.97 after the word
DATE, with the amount of P16,000,000.00 in words and in figures, and with other words and
figures now appearing thereon, typing or causing to be typed at the right bottom thereof the name
reading ROMEO TAN, feigning and forging or causing to be feigned and forged on top of said
name the signature of Romeo Tan, affixing his own signature at the left bottom thereof
purportedly to show that he witnessed the alleged signing of the said note by Romeo Tan,
thereafter preparing and filling up or causing to be prepared and filled up METROBANK
CASHIERS CHECK NO. CC 0000001531, a commercial document, with date reading July 24,
1997, with the name reading Romeo Tan as payee, and with the sum of P15,362,666.67 in
words and in figures, which purports to be the proceeds of the loan being obtained, thereafter
affixing his own signature thereon, and [directing] the unsuspecting bank cashier to also affix his
signature on the said check, as authorized signatories, and finally affixing, feigning and forging
or causing to be affixed, feigned and forged four (4) times at the back thereof the signature of
said Romeo Tan, thereby making it appear, as it did appear that Romeo Tan had participated in
the [preparation], execution and signing of the said Promissory Note and the signing and
endorsement of the said METROBANK CASHIERS CHECK and that he obtained a loan of
P16,000,000.00 from METROBANK, when in truth and in fact, as the said accused well knew,
such was not the case in that said Romeo Tan did not obtain such loan from METROBANK,
neither did he participate in the preparation, execution and signing of the said promissory note
and signing and endorsement of said METROBANK CASHIERS CHECK, much less authorize
herein accused to prepare, execute and affix his signature in the said documents; that once the
said documents were forged and falsified in the manner above set forth, the said accused
released, obtained and received from the METROBANK the sum of P15,363,666.67 purportedly
representing the proceeds of the said loan, which amount, once in his possession, with intent to
defraud, he misappropriated, misapplied and converted to his own personal use and benefit, to
the damage and prejudice of the said METROBANK in the same sum of P15,363,666.67,
Philippine currency.

CONTRARY TO LAW.8

On May 27, 1998, the RTC entered a plea of not guilty for the petitioner after he refused to enter
a plea.9 The cases were then consolidated and jointly tried.
The proceedings before the RTC as aptly summarized by the CA are as follows: cralavvonlinelawlibrary

During the pre-trial, except for the identity of the accused, the jurisdiction of the court, and that
accused was the branch manager of Metrobank Commercio Branch from July 1997 to December
1997, no other stipulations were entered into. Prosecution marked its exhibits A to L and
sub-markings.

xxxx

The prosecution alleged that on different occasions, appellant caused to be prepared promissory
notes and cashiers checks in the name of Romeo Tan, a valued client of the bank since he has
substantial deposits in his account, in connection with the purported loans obtained by the latter
from the bank. Appellant approved and signed the cashiers check as branch manager of
Metrobank Commercio Branch. Appellant affixed, forged or caused to be signed the signature of
Tan as endorser and payee of the proceeds of the checks at the back of the same to show that the
latter had indeed endorsed the same for payment. He handed the checks to the Loans clerk,
Maria Dolores Miranda, for encashment. Once said documents were forged and falsified,
appellant released and obtained from Metrobank the proceeds of the alleged loan and
misappropriated the same to his use and benefit. After the discovery of the irregular loans, an
internal audit was conducted and an administrative investigation was held in the Head Office of
Metrobank, during which appellant signed a written statement (marked as Exhibit N) in the
form of questions and answers.

The prosecution presented the following witnesses: cralavvonlinelawlibrary

Valentino Elevado, a member of the Internal Affairs [D]epartment of Metrobank[,] testified that
he conducted and interviewed the appellant in January 1998; that in said interview, appellant
admitted having committed the allegations in the Informations, specifically forging the
promissory notes; that the proceeds of the loan were secured or personally received by the
appellant although it should be the client of the bank who should receive the same; and that all
the answers of the appellant were contained in a typewritten document voluntarily executed,
thumbmarked, and signed by him (Exhibit N).

Rosemarie Tan Apostol, assistant branch manager, testified that the signatures appearing on the
promissory notes were not the signatures of Romeo Tan; that the promissory notes did not bear
her signature although it is required, due to the fact that Romeo Tan is a valued client and her
manager accommodated valued clients; that she signed the corresponding checks upon
instruction of appellant; and that after signing the checks, appellant took the same [which]
remained in his custody.

Eliodoro M. Constantino, NBI Supervisor and a handwriting expert, testified that the signatures
appearing on the promissory notes and specimen signatures on the signature card of Romeo Tan
were not written by one and the same person.

Maria Dolores Miranda, a Loans Clerk at Metrobank Commercio Branch, testified that several
cashiers checks were issued in favor of Romeo Tan; that appellant instructed her to encash the
same; and that it was appellant who received the proceeds of the loan.

For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of a Masters degree
from the Asian Institute of Management, and was the Branch Manager of Metrobank Commercio
Branch from 1994 until he was charged in 1998 [with] the above-named offense. He was with
Metrobank for nine (9) years starting as assistant manager of Metrobank Dasmarias Branch,
Binondo, Manila. As manager, he oversaw the day to day operations of the [branch], solicited
accounts and processed loans, among others.

Appellant claimed that he was able to solicit Romeo Tan as a client-depositor when he was the
branch manager of Metrobank Commercio. As a valued client, Romeo Tan was granted a credit
line for forty million pesos ([P]40,000,000.00) by Metrobank. Tan was also allowed to open a
fictitious account for his personal use and was assisted personally by appellant in his dealings
with the bank. In the middle of 1997, Tan allegedly opened a fictitious account and used the
name Jose Tan. Such practice for valued clients was allowed by and known to the bank to hide
their finances due to rampant kidnappings or from the Bureau of Internal Revenue (BIR) or from
their spouses.

According to appellant, Tan availed of his standing credit line (through promissory notes) for
five (5) times on the following dates: 1) 24 July 1997 for sixteen million pesos
([P]16,000,000.00), 2) 27 October 1997 for six million pesos ([P]6,000,000.00), 3) 12 November
1997 for three million pesos ([P]3,000,000.00), 4) 21 November 1997 for sixteen million pesos
([P]16,000,000,00), 5) 22 December 1997 for two million pesos ([P]2,000,000.00). On all these
occasions except the loan on 24 July 1997 when Tan personally went to the bank, Tan allegedly
gave his instructions regarding the loan through the telephone. Upon receiving the instructions,
appellant would order the Loans clerk to prepare the promissory note and send the same through
the banks messenger to Tans office, which was located across the [street]. The latter would
then return to the bank, through his own messenger, the promissory notes already signed by
him. Upon receipt of the promissory note, appellant would order the preparation of the
corresponding cashiers check representing the proceeds of the particular loan, send the same
through the banks messenger to the office of Tan, and the latter would return the same through
his own messenger already endorsed together with a deposit slip under Current Account No.
258-250133-7 of Jose Tan. Only Cashiers Check dated 21 November 1997 for sixteen million
pesos ([P]16,000,000.00) was not endorsed and deposited for, allegedly, it was used to pay the
loan obtained on 24 July 1997. Appellant claimed that all the signatures of Tan appearing on the
promissory notes and the cashiers checks were the genuine signatures of Tan although he never
saw the latter affix them thereon.

In the middle of January 1998, two (2) Metrobank auditors conducted an audit of the Commercio
Branch for more than a week. Thereafter or on 26 January 1998, appellant was asked by Elvira
Ong-Chan, senior vice president of Metrobank, to report to the Head Office on the following
day. When appellant arrived at the said office, he was surprised that there were seven (7) other
people present: two (2) senior branch officers, two (2) bank lawyers, two (2) policemen (one in
uniform and the other in plain clothes), and a representative of the Internal Affairs unit of the
bank, Valentino Elevado.
Appellant claimed that Elevado asked him to sign a paper (Exhibit N) in connection with the
audit investigation; that he inquired what he was made to sign but was not offered any
explanation; that he was intimidated to sign and was threatened by the police that he will be
brought to the precinct if he will not sign; that he was not able to consult a lawyer since he was
not apprised of the purpose of the meeting; [and] that just to get it over with he signed the
paper which turned out to be a confession. After the said meeting, appellant went to see Tan at
his office but was unable to find the latter. He also tried to phone him but to no avail.10

Ruling of the Regional Trial Court

After the joint trial, the RTC rendered a consolidated Decision11 dated June 25, 1999 finding
petitioner guilty of the crimes charged, the decretal portion of which states:
cralavvonlinelawlibrary

WHEREFORE, the Court finds the accused, Carlos Lo Tanenggee, guilty beyond reasonable
doubt of the offense of estafa thru falsification of commercial document[s] charged in each of the
five (5) Informations filed and hereby sentences him to suffer the following penalties: cralavvonlinelawlibrary

1. In Criminal Case No. 98-163806[,] to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law.

2. In Criminal Case No. 98-163807[,] to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of P16 Million with interest [at] 18% per annum counted from 27 November 1997 until
fully paid.

3. In Criminal Case No. 98-163808[,] to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of P6 Million with interest [at] 18% per annum counted from 27 October 1997 until fully
paid.

4. In Criminal Case No. 98-163809[,] to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of P2 Million with interest [at] 18% per annum counted from 22 December 1997 until fully
paid.

5. In Criminal Case No. 98-163810[,] to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of P3 Million with interest [at] 18% per annum [counted] from 12 November 1997 until
fully paid.

Accused shall serve the said penalties imposed successively.


As mandated in Article 70 of the Revised Penal Code, the maximum duration of the sentence
imposed shall not be more than threefold the length of time corresponding to the most severe of
the penalties imposed upon him and such maximum period shall in no case exceed forty (40)
years.

SO ORDERED.12 nadcralavvonlinelawlibrary

Ruling of the Court of Appeals

Petitioner appealed the judgment of conviction to the CA where the case was docketed as CA-
G.R. CR No. 23653. On December 12, 2006, the CA promulgated its Decision13 affirming with
modification the RTC Decision and disposing of the appeal as follows: cralavvonlinelawlibrary

WHEREFORE, the appeal is DENIED for lack of merit and the Decision dated 25 June 1999 of
the Regional Trial Court (RTC) of Manila, Branch 30 convicting the accused-appellant Carlos
Lo [Tanenggee] on five counts of estafa through falsification of commercial documents is hereby
AFFIRMED with MODIFICATION that in Criminal Case No. 98-163806, he is further
ordered to indemnify Metrobank the sum of [P]16 Million with interest [at] 18% per annum
counted from 24 July 1997 until fully paid.

SO ORDERED.14

On December 29, 2006,15 petitioner moved for reconsideration, which the CA denied per its
September 6, 2007 Resolution.16

Hence, the present Petition for Review on Certiorari under Rule 45 of the Rules of Court raising
the basic issues of: (1) whether the CA erred in affirming the RTCs admission in evidence of the
petitioners written statement based on its finding that he was not in police custody or under
custodial interrogation when the same was taken; and, (2) whether the essential elements of
estafa through falsification of commercial documents were established by the prosecution.17

The Parties Arguments

While he admits signing a written statement,18 petitioner refutes the truth of the contents thereof
and alleges that he was only forced to sign the same without reading its contents. He asserts that
said written statement was taken in violation of his rights under Section 12, Article III of the
Constitution, particularly of his right to remain silent, right to counsel, and right to be informed
of the first two rights. Hence, the same should not have been admitted in evidence against him.

On the other hand, respondent People of the Philippines, through the Office of the Solicitor
General (OSG), maintains that petitioners written statement is admissible in evidence since the
constitutional proscription invoked by petitioner does not apply to inquiries made in the context
of private employment but is applicable only in cases of custodial interrogation. The OSG thus
prays for the affirmance of the appealed CA Decision.
Our Ruling

We find the Petition wanting in merit.

Petitioners written statement is


admissible in evidence.

The constitutional proscription against the admissibility of admission or confession of guilt


obtained in violation of Section 12, Article III of the Constitution, as correctly observed by the
CA and the OSG, is applicable only in custodial interrogation.

Custodial interrogation means any questioning initiated by law enforcement authorities after a
person is taken into custody or otherwise deprived of his freedom of action in any significant
manner. Indeed, a person under custodial investigation is guaranteed certain rights which attach
upon the commencement thereof, viz: (1) to remain silent, (2) to have competent and independent
counsel preferably of his own choice, and (3) to be informed of the two other rights above.19 In
the present case, while it is undisputed that petitioner gave an uncounselled written statement
regarding an anomaly discovered in the branch he managed, the following are clear: (1) the
questioning was not initiated by a law enforcement authority but merely by an internal affairs
manager of the bank; and, (2) petitioner was neither arrested nor restrained of his liberty in any
significant manner during the questioning. Clearly, petitioner cannot be said to be under
custodial investigation and to have been deprived of the constitutional prerogative during the
taking of his written statement.

Moreover, in Remolona v. Civil Service Commission,20 we declared that the right to counsel
applies only to admissions made in a criminal investigation but not to those made in an
administrative investigation. Amplifying further on the matter, the Court made clear in the
recent case of Carbonel v. Civil Service Commission:21

However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights
is meant to protect a suspect during custodial investigation. Thus, the exclusionary rule under
paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal
investigation but not to those made in an administrative investigation.22

Here, petitioners written statement was given during an administrative inquiry conducted by his
employer in connection with an anomaly/irregularity he allegedly committed in the course of his
employment. No error can therefore be attributed to the courts below in admitting in evidence
and in giving due consideration to petitioners written statement as there is no constitutional
impediment to its admissibility.

Petitioners written statement was given


voluntarily, knowingly and intelligently.

Petitioner attempts to convince us that he signed, under duress and intimidation, an already
prepared typewritten statement. However, his claim lacks sustainable basis and his supposition
is just an afterthought for there is nothing in the records that would support his claim of duress
and intimidation.

Moreover, [i]t is settled that a confession [or admission] is presumed voluntary until the
contrary is proved and the confessant bears the burden of proving the contrary.23 Petitioner
failed to overcome this presumption. On the contrary, his written statement was found to have
been executed freely and consciously. The pertinent details he narrated in his statement were of
such nature and quality that only a perpetrator of the crime could furnish. The details contained
therein attest to its voluntariness. As correctly pointed out by the CA:cralavvonlinelawlibrary

As the trial court noted, the written statement (Exhibit N) of appellant is replete with details
which could only be supplied by appellant. The statement reflects spontaneity and coherence
which cannot be associated with a mind to which intimidation has been applied. Appellants
answers to questions 14 and 24 were even initialed by him to indicate his conformity to the
corrections made therein. The response to every question was fully informative, even beyond the
required answers, which only indicates the mind to be free from extraneous restraints.24

In People v. Muit,25 it was held that [o]ne of the indicia of voluntariness in the execution of
[petitioners] extrajudicial [statement] is that [it] contains many details and facts which the
investigating officers could not have known and could not have supplied without the knowledge
and information given by [him].

Also, the fact that petitioner did not raise a whimper of protest and file any charges, criminal or
administrative, against the investigator and the two policemen present who allegedly intimidated
him and forced him to sign negate his bare assertions of compulsion and intimidation. It is a
settled rule that where the defendant did not present evidence of compulsion, where he did not
institute any criminal or administrative action against his supposed intimidators, where no
physical evidence of violence was presented, his extrajudicial statement shall be considered as
having been voluntarily executed.26

Neither will petitioners assertion that he did not read the contents of his statement before
affixing his signature thereon just to get it over with prop up the instant Petition. To recall,
petitioner has a masteral degree from a reputable educational institution and had been a bank
manager for quite a number of years. He is thus expected to fully understand and comprehend
the significance of signing an instrument. It is just unfortunate that he did not exercise due
diligence in the conduct of his own affairs. He can therefore expect no consideration for it.

Forgery duly established.

Forgery is present when any writing is counterfeited by the signing of anothers name with
intent to defraud.27 It can be established by comparing the alleged false signature with the
authentic or genuine one. A finding of forgery does not depend entirely on the testimonies of
government handwriting experts whose opinions do not mandatorily bind the courts. A trial
judge is not precluded but is even authorized by law28 to conduct an independent examination of
the questioned signature in order to arrive at a reasonable conclusion as to its authenticity.

In this case, the finding of forgery on the signature of Romeo Tan (Tan) appearing in the
promissory notes and cashiers checks was not anchored solely on the result of the examination
conducted by the National Bureau of Investigation (NBI) Document Examiner. The trial court
also made an independent examination of the questioned signatures and after analyzing the same,
reached the conclusion that the signatures of Tan appearing in the promissory notes are different
from his genuine signatures appearing in his Deposit Account Information and Specimen
Signature Cards on file with the bank. Thus, we find no reason to disturb the above findings of
the RTC which was affirmed by the CA. A rule of long standing in this jurisdiction is that
findings of a trial court, when affirmed by the CA, are accorded great weight and
respect. Absent any reason to deviate from the said findings, as in this case, the same should be
deemed conclusive and binding to this Court.

No suppression of evidence on the


part of the prosecution.

Petitioner claims that the prosecution should have presented Tan in court to shed light on the
matter. His non-presentation created the presumption that his testimony if given would be
adverse to the case of the prosecution. Petitioner thus contends that the prosecution suppressed
its own evidence.

Such contention is likewise untenable. The prosecution has the prerogative to choose the
evidence or the witnesses it wishes to present. It has the discretion as to how it should present its
case.29 Moreover, the presumption that suppressed evidence is unfavorable does not apply where
the evidence was at the disposal of both the defense and the prosecution.30 In the present case, if
petitioner believes that Tan is the principal witness who could exculpate him from liability by
establishing that it was Tan and not him who signed the subject documents, the most prudent
thing to do is to utilize him as his witness. Anyway, petitioner has the right to have compulsory
process to secure Tans attendance during the trial pursuant to Article III, Section 14(2)31 of the
Constitution. The records show, however, that petitioner did not invoke such right. In view of
these, no suppression of evidence can be attributed to the prosecution.

Petitioners denial is unavailing.

The Court is also not persuaded by the bare and uncorroborated allegation of petitioner that the
loans covered by the promissory notes and the cashiers checks were personally transacted by
Tan against his approved letter of credit, although he admittedly never saw Tan affix his
signature thereto. Again, this allegation, as the RTC aptly observed, is not supported by
established evidence. It is settled that denials which are unsubstantiated by clear and
convincing evidence are negative and self-serving evidence. [They merit] no weight in law and
cannot be given greater evidentiary value over the testimony of credible witnesses who testified
on affirmative matters.32 The chain of events in this case, from the preparation of the
promissory notes to the encashment of the cashiers checks, as narrated by the prosecution
witnesses and based on petitioners own admission, established beyond reasonable doubt that he
committed the unlawful acts alleged in the Informations.

Elements of falsification of commercial


documents established.
Falsification of documents under paragraph 1, Article 172 in relation to Article 171 of the
Revised Penal Code (RPC) refers to falsification by a private individual or a public officer or
employee, who did not take advantage of his official position, of public, private or commercial
document. The elements of falsification of documents under paragraph 1, Article 172 of the
RPC are: (1) that the offender is a private individual or a public officer or employee who did not
take advantage of his official position; (2) that he committed any of the acts of falsification
enumerated in Article 171 of the RPC;33 and, (3) that the falsification was committed in a public,
official or commercial document.

All the above-mentioned elements were established in this case. First, petitioner is a private
individual. Second, the acts of falsification consisted in petitioners (1) counterfeiting or
imitating the handwriting or signature of Tan and causing it to appear that the same is true and
genuine in all respects; and (2) causing it to appear that Tan has participated in an act or
proceeding when he did not in fact so participate. Third, the falsification was committed in
promissory notes and checks which are commercial documents. Commercial documents are, in
general, documents or instruments which are used by merchants or businessmen to promote or
facilitate trade or credit transactions.34 Promissory notes facilitate credit transactions while a
check is a means of payment used in business in lieu of money for convenience in business
transactions. A cashiers check necessarily facilitates bank transactions for it allows the person
whose name and signature appear thereon to encash the check and withdraw the amount
indicated therein.35

Falsification as a necessary
means to commit estafa.

When the offender commits on a public, official or commercial document any of the acts of
falsification enumerated in Article 171 as a necessary means to commit another crime like estafa,
theft or malversation, the two crimes form a complex crime. Under Article 48 of the RPC, there
are two classes of a complex crime. A complex crime may refer to a single act which constitutes
two or more grave or less grave felonies or to an offense as a necessary means for committing
another.

In Domingo v. People,36 we held: cralavvonlinelawlibrary

The falsification of a public, official, or commercial document may be a means of committing


estafa, because before the falsified document is actually utilized to defraud another, the crime of
falsification has already been consummated, damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial document. In other words,
the crime of falsification has already existed. Actually utilizing that falsified public, official or
commercial document to defraud another is estafa. But the damage is caused by the commission
of estafa, not by the falsification of the document. Therefore, the falsification of the public,
official or commercial document is only a necessary means to commit estafa.

Estafa is generally committed when (a) the accused defrauded another by abuse of confidence,
or by means of deceit, and (b) the offended party or a third party suffered damage or prejudice
capable of pecuniary estimation.37 [D]eceit is the false representation of a matter of fact,
whether by words or conduct, by false or misleading allegations, or by concealment of that
which should have been disclosed which deceives or is intended to deceive another so that he
shall act upon it to his legal injury.38

The elements of estafa obtain in this case. By falsely representing that Tan requested him to
process purported loans on the latters behalf, petitioner counterfeited or imitated the signature of
Tan in the cashiers checks. Through these, petitioner succeeded in withdrawing money from the
bank. Once in possession of the amount, petitioner thereafter invested the same in Eurocan
Future Commodities. Clearly, petitioner employed deceit in order to take hold of the money,
misappropriated and converted it to his own personal use and benefit, and these resulted to the
damage and prejudice of the bank in the amount of about P43 million.

Taken in its entirety, the proven facts show that petitioner could not have withdrawn the money
without falsifying the questioned documents. The falsification was, therefore, a necessary means
to commit estafa, and falsification was already consummated even before the falsified documents
were used to defraud the bank. The conviction of petitioner for the complex crime of Estafa
through Falsification of Commercial Document by the lower courts was thus proper.

The Proper Imposable Penalty

The penalty for falsification of a commercial document under Article 172 of the RPC is prision
correccional in its medium and maximum periods and a fine of not more than P5,000.00.

The penalty in estafa cases, on the other hand, as provided under paragraph 1, Article 315 of the
RPC is prision correccional in its maximum period to prision mayor in its minimum period39 if
the amount defrauded is over P12,000.00 but does not exceed P22,000.00. If the amount
involved exceeds the latter sum, the same paragraph provides the imposition of the penalty in its
maximum period with an incremental penalty of one year imprisonment for every P10,000.00
but in no case shall the total penalty exceed 20 years of imprisonment.

Petitioner in this case is found liable for the commission of the complex crime of estafa through
falsification of commercial document. The crime of falsification was established to be a
necessary means to commit estafa. Pursuant to Article 48 of the Code, the penalty to be imposed
in such case should be that corresponding to the most serious crime, the same to be applied in its
maximum period. The applicable penalty therefore is for the crime of estafa, being the more
serious offense than falsification.

The amounts involved in this case range from P2 million to P16 million. Said amounts being in
excess of P22,000.00, the penalty imposable should be within the maximum term of six (6)
years, eight (8) months and twenty-one (21) days to eight (8) years of prision mayor, adding one
(1) year for each additional P10,000.00. Considering the amounts involved, the additional
penalty of one (1) year for each additional P10,000.00 would surely exceed the maximum
limitation provided under Article 315, which is twenty (20) years. Thus, the RTC correctly
imposed the maximum term of twenty (20) years of reclusion temporal.
There is need, however, to modify the penalties imposed by the trial court as affirmed by the CA
in each case respecting the minimum term of imprisonment. The trial court imposed the
indeterminate penalty of imprisonment from eight (8) years of prision mayor as minimum which
is beyond the lawful range. Under the Indeterminate Sentence Law, the minimum term of the
penalty should be within the range of the penalty next lower to that prescribed by law for the
offense. Since the penalty prescribed for the estafa charge against petitioner is prision
correccional maximum to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods which has a duration of six (6) months and one
(1) day to four (4) years and two (2) months. Thus, the Court sets the minimum term of the
indeterminate penalty at four (4) years and two (2) months of prision correccional. Petitioner is
therefore sentenced in each case to suffer the indeterminate penalty of four (4) years and two (2)
months of prision correccional as minimum to twenty (20) years of reclusion temporal as
maximum.

WHEREFORE, the Petition is DENIED. The Decision and Resolution of the Court of Appeals
in CA-G.R. CR No. 23653 dated December 12, 2006 and September 6, 2007, respectively, are
hereby AFFIRMED with the MODIFICATION that the minimum term of the indeterminate
sentence to be imposed upon the petitioner should be four (4) years and two (2) months of
prision correccional.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Perlas-Bernabe, JJ., concur.

d. Conduct and Character

People of the Philippines Santos

THIRD DIVISION

G.R. Nos. 100225-26 May 11, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
RAUL SANTOS Y NARCISO, MARIO MORALES Y BACANI, PETER DOE and RICHARD DOE, Accused, RAUL SANTOS y NARCISO,
accused-appellant.

The Solicitor General for plaintiff-appellee

Valmonte Law Offices for accused-appellant.

FELICIANO, J.:

Raul N. Santos appeals from a judgment of the trial court convicting him of murder and frustrated murder.
On 26 October 1989, appellant Santos was charged with the crimes of murder with the use of unlicensed firearms and frustrated murder,
under the following informations:

In Crim. Case No. 8517-MN: 1

That on or about the 26th day of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating together and mutually helping with one another, without
any justifiable cause, with deliberate intent to kill, treachery and evident premediation, did then and there willfully,
unlawfully and feloniously shoot GLICERIO CUPCUPIN y REYES with the use of unlicensed firearms of unknown
caliber, thereby inflicting upon the latter serious physical injuries which caused his death at the Tondo Medical Center,
Manila.

Contrary to Law.

In Crim. Case No. 8518-MN: 2

That on or about the 26th of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping with one another, witout any justifiable cause, with
deliberate intent to kill, treachery and evident premeditation did, then and there, willfully, unlawfully and feloniously
shoot ALBERTO BAUTISTA Y CAYETANO, with the use use of firearms of unknown caliber, thereby inflicting upon the
latter serious physical injuries, thus performing all the acts of execution which would have produced the crime of
MURDER as a consequence but which nevertheless did not produce it by reason of causes independent of the will of
the herein accused, that is due to the timely, able and efficient medical attendance rendered to the victim at the Tondo
Medical Center, Manila.

Contrary to Law.

Three (3) other persons were charged in the same informations. Upon request of the City Prosecutor who had conducted a re-investigation
of the cases, the trial court ordered the amendment of the information on 4 April 1990 so as to insert the name of one Mario Morales, in lieu
of John Doe, as a co-accused. Morales for whom a warrant of arrest was issued, is, however, still at large, The identities of the two (2) other
accused remain unknown.

At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the two 92) criminal cases ensued, culminating in a judagment of
conviction. The dispositive portion of this judgment reads as follows:

WHEREFORE, premises considerd, judgment is hereby rendered finding accused Raul Santos guilty beyond
reasonable doubt of the offenses charged against him in these cases. He is accordingly sentenced to two (2) prision
terms as follows:

1) In Crim. Case No. 8517-MN for Murder, to life imprisonment, the death penalty which should have been imposed in
this case having been abolished under the present Constitution;

2) In Crim. Case No. 8518-MN for Frustrated Murder, to a prison term ranging from SIX (6) YEARS OF prision
correccional, as minimum to TWELVE (12) YEARS of prision mayor as maximum.

Accused Santos is also odered to proportionately pay the heirs of Glicerio Cupcupin the sum of P30,000.00 for the loss
of the latter's life and to pay said heirs, proportionately aldo, P100,000.00 by way of indemnification for the expenses
incurred in connection with Cupcupin's death.

Costs against accused in both cases.

SO ORDERED. 3

The relevant facts as found by the trial court are the following:

Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven by the former on May 26, 1989. At around 11:45
o'clock in the morning of said date, the jeep was at a stop at the corner of Estrella and Yangco Streets in navotas,
Metro Manila and was about to make a right turn when two (2) persons armed with short guns approached the jeep and
fired at Cupcupin and Bautista. Cupcupin was hit several itmes in different parts of his body and he died as a result of
the multiple gunshot wounds he sustained (Exh. V). Bautista sustained gunshot wounds, one at the left thigh, one in
theloer abdomen, one at the back of the right foot and another at the back of the body. Bautista was able to run away
even as he was bieng fired upon. He took cover in a store. The one firing the gun at thim was a man he later identified
to be accused Raul Santos. The other one which he saw similary firing his gun was aiming at Cupcupin. He identified
the man to be one Mario Morales. He added that he saw Cupcupin hit by gunshots at the left side of the body near the
waist which made Cupcupin fall-off the steering wheel. After running away, Bautista could not remember anymore what
else happened. He could not rmember anymore what else happened. He at thim and Cupcupin. After hearing a shout
that the ambushers were no longer around, he learned that a woman bystander was hit and was boarded on a jeep to
be brought to the hospital. He was boarded on said jeep too but later transferred to was brought to the Martinez
General Hospital and to the Mary Jonston hospital where he was treated. Bautista was oeporated on (Exhs. B, B-1, C,
D and E). Upon the apprehensionof accused where he picked out from a line-up accused Raul Santos. In another line-
up, he also picked out accused Morales. Bautista also gave a sworn statement narrating the shooting incident (Exh. F).

Police Aide Victorino Bohol was on duty and directing traffic at the corner of Plaza Rizal and Estrella Streets when he
heard gunshots. When he looked around the saw two 92) persons who were holding Cal. 45 pistols firing at persons on
board a stainless steel owner jeep. Bohol was not able to approach the men firing their guns because he was not
provided with a gun. What he did was to run to headquarters to call for policemen and when he returned to the scene of
the shooting he learned that one of hte passengers of the jeep was killed. He learned also that the slain man was killed.
He learned also that the slain man was Glicerio Cupcupin and that his companion was Alberto Bautista alias "Tiwa".
Bohol also added that tere were two (2) other persons who were also firing at the passengers of the jeep although he
did not recognize these two (2) other persons. After the arrest of accused Santos, Bohol was called to the police station
and through a one-way mirror he was able to identify accused Santos as one of the persons who shot Cupcupin and
Bautista. Bohol also gave a sworn statement to the police (Exh. A).

On cross-examination, Bohol admitted that at the time of the shooting he was at the Jim Bread Store talking to
someone. When he heard gunshots thier guns at the same time at the jeep. He added that the accused was arrested
some months later in connectiion with another shooting incident wherein Santos was suspected of involvement. He
confirmed that Bautista was bieng shot at while running away from the place.

Cpl. Sabino Patood of the Navotas Police delcared that he was investigating a shooting incident which resulted in the
death of one Abudl Rosas wherein the suspect was accused Santos when he was tipped by police intelligence
operatives that Santos was involved in the ambush of Cupcupin. This made him conduct further investigation by calling
for Bautista and Bohol. Patood also interviewed Santos who admitted his participation inthe ambush to him. He did not
take any written statement from accused Santos because there was nocounsel available at that time and because
Santos was not willing to give any written statement.

Dr. Maximo Reyes of the NBI Medico Legal Division performed an autorpsy onthecadaver of victim Cupcupin and
found out that the latter sustained nineteen (19) gunshot wounds in different parts of his body. The cause of death
gunshot wounds. Dr. Reyes added that the assailants were probably at the left side of the victim as they were shooting
at the latter with the victim possibly seated at the time he was shot and hit.

The victim's wife Lucia Cupcupin declared that P100,000.00 was spent in connection with the death of her husband
who was earning P5,000.00 a month as a businessman dealing in junk materials and
marbale. 4

The trial court found that the accused Raul Santos had been identified positively by the surviving vicitm of
the shooting incident Alberto Bautista, and by teh Traffic Aide who had witnessed the execution of the
crime Victorino Bohol. The defensse of alibi offered by the accused and supported by the testimonies
of a friend and a sister, was rejected as weak and unavailing. As noted, a judgment of conviction
followed.

Inhis appeal, Raul Santos assings the following as errors committed by the trial court:

i the lower court erred in holding that accused's identification by proscution's witnesses was "positive" and, and,
therefore it erred when it rejected accused's defense of alib.

ii the lower court erred in considering one of the two cases (not the instant ones) filed against the accused in holding
also for his guilt.

iii the lower court erred in convicting the accused. 5

In respect of the first assigned error, appellant Santos contendes that the testimonies of the principal
prosecution witnesses do not coform with the "knowledge and common experience of mankind."
Appellant argues that the two (2) prosecution witnesses, the victim Bautista and Police Aide Bohol,
testified that they saw the accused for the first time in their lives when the crime was committed and yet
identified him as one of the gunmen five (5) months later in the Police headquarters in Navotas. The
ambuscade and the slaying of Glicierio Cupcupin happened on 26 May 1989; appellant Santos was
identified at the police station on 25 October 1989. Appellant argues that this lapse of time was
unreasonable, which, when coupled with the brief, limited and obstructed view which the prosecution
witnesses had of the gunmen at the time of the shooting, casts serious doubt on the accuracy and
reliabitlity of the identification by the witnesses.

Appellant's argument does not persuade.

Police Aide Bohol was only abot twelve (12) armlengths away from teh ambush vehicle. The ambush
slaying occurred under conditions of high visibility: the victim Cupcupin was shot to death at 11:45 o'clock
in the morning, in good weahter, when the sun was almost at its zenith. On cross-examination, Bohol
stated that there were no passing vehicles that blocked his view of the slaying of the victim as the
vehicles stopped some distance away from the jeep when the shooting began. In addition, Bohol testified
that he saw one of teh gunmen take a wrist watch and a gun form Cupcupin's lifeless body. Clearly, Bohol
had the opportunity to observe the extraordinary and startling events which unfolded on the corner of two
(2) busy streets almost at high noon, events which may be expected to leave a strong impression upon
the minds of an eye-witnesses who, like Police Aide Bohol, had a duty to maintain law and order. Alberto
Bautista who had been riding on a jeep and hwo escped death (but not gunshot wounds) by reason of his
quick reflexes, had every reason to remember the faces of those whom he saw firing at the jeep and at
himself. This has been recognized a number of times in ouir case law. In People v. Jacolo, et al., 6 the
Couirt said:

[W]hile evidence as to the identity of the accused as the person who committed the crime should be carefully analyzed,
. . . "were the conditions of visibility are favorable and the witness does not appear to be biased agains teh man on the
dock, his or her assertions as to the identity of the malefactore should normally be accpeted. And this is more so where
the witness is the victim or his near-relative, as in this case, because these (people) usually strive to remember the
faces of the assailants." (Emphasis supplied.) 7

Appellant Santos also contended that Police Aide Bohol could not have had a clear view of the
ambuscade and the shooting of Cupcupin since he (Bohol) was situated on the left side of the gunmen.
As observed by teh Solicitor General, however, the trial court had pointed out that "if he [Bohol] was to the
front right of the jeep" then he must [have been] a little by the left side of the persons firing at the jeep . . ."
8
"Bohol's view, therefore," the Solicitor General continued, "was not limited to the left side of the
assilants, especially since he was able to see them [the gunmen] move around the site of the ambush
after the [had] stopped firing, specifically when one of them stripped victim Cupcupin of his gun and
jewelry and they all walked away from the place." 9 The trial court obviously concluded that Bohol had
ample opportunity actually to observe tha events on which he testified, and we find no basis for
overtunring this conclusion of the trial court.

In respect of the identification by Bautista, accused also suggests that Bautista had no real opoortunityto
see and impress upon his memory the faces of the assailants. In his testimony, Bautista stated that two
(2) men armed with handguns suddenly apporoached the jeep in which he and Cupcupin were riding. He
agreed that his attention had been "focused" (defense counsel's own language) on vehicles passing
along Estrella Street as Cupcupin maneuvered the jeep to turn right at the corner and to head towards
Navotas. When the assailants started shooting, Bautista jumped from the jeep, was hit on the left thigh
and other parts of the body, but managed to run for cover from repeated shots or bursts of gunfire.
Bautista testified further that he was shot by appellant Raul Santos while Morales pumped bullets into
Cupcupin; that the gunmen fired at Cupcupin and Bautista from close range, Morales being a mere half
an arm-length to the left of Cupcupin while appellant Santos was about two (2) arm-lengths away from the
ambushed jeep; and that Bautista saw his compaion, Cupcupin, slump on the steering wheel as the
bullets crashed into him. Once more, the trial court was led by the above circumstances to conclude that
Bautista had adequate oportunity to see appellant Santos and to retain his face in his memory. We find
no basis for rejecting this factual conclusion of the trial court.

Appellant Santos makes two (2) additional arguments. Firstly, he complains that he was not afforded his
right to counsel int he course of the police line-up, at the police station where he was identified by the
prosecution witnesses. This argument, of course, assumes that during the police line-up, accused was
under custodial investigation, a stage which, per the appellant, began the instant the police suspected
Santos then had no lawyer present nor was one provided, his counsel argues, Santos's identification was
"tainted" and inadmissible. The argument is creative, but has no legal bais. In Gamboa v. Cruz, 10 the
Court said that there is "no real need to afford a suspect the serivce of counsel at police line-up," 11 a
declaration reiterated in People v. Loveria. 12 The customary practice is, of course, that it is the witness
who is investigaged or interrogated in the course of a police line-up and who gives a statement to the
police, rather than the accused who is not questioned at all at that stage. The Court is aware of the
caveat in Gamboa. 13 But there is nothing in the record of this case which shows that in the course of the
line-up, the police investigators sought to extract any admission or confession from appellant Santos. The
investigators did not in fact interrogate appellant Santos during the line-up and he remained silent after he
had bee identified by Bautista and Bohol.

Appellant Santos's secon dcontention is that there had bee "improper suggestiveness" in the course of
the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that
Bautista and Bohol were induced by the plice investigators to point to appellant Santos as one of the
gunmen. The record does not show that the police investigators had coached Bautista. Appellant
Santos's counsel directed the attention of this Court to a portion of Bohol's testimony during cross-
examination, to wit:

Atty. Valmonte:

Alright, that somebody who told you to go to the office of Capt. Puzon you were informed that on the other side of the
office of Capt. Puzon there was already the person whom they would like to identfy?

Victorino Bohol:

Yes, sir.

Atty. Valmonte:

And was there somebody who asked you who among those in the investigation room the person
whom you saw?

Victorino Bohol:

No, sir. Somebody approached me and said, iyan po. But before answering, I made a very careful
look at the person. 14

We are not convinced, however, that the phrase "iyan po" constituted an "improper suggestion," certainly
not in the context of a situation where, as here, appellant Santos was identified successively by Bautista
and Bohol from a group of person. We consider that the phrase "iyan po" is too cryptic. What that Court
warned against in People v. Acosta, 15 i.e., against an identification process that was "pointedly
suggestive, or generated confidence when there was noen, activated visual imagination, and all told,
subverted [a person's] reliablity as [an] eye-witness [..]," has not been successfully shown in the case at
bar.

Appellant Santos next seeks to assail the credibility of Bautista and Bohol by citing supposed
inconsistencies between statements made in their affidavits before trial and their testimony given in the
course of the trial. Appellant's counsel complains 16 that while witness Bohol could recall the gunmen's
general apperance, he could not remember the kind of shoes that appellant Santos was wearing nor the
color of their guns; that he had stated in his swon statement that he had picked out appellant Santos from
a line-up consisting of seven (7) persons, while he testified in open court that he had identified appellant
when the later was together with only one (1) detainee in the investigation froom of the police station; that
Bohol had intiallystated that Bautista was driving the jeep but on direct examination, he stated that it was
Cupcupin instead who had been driving the jeep; that in his sworn statement, Bohol had claimed that he
was directing traffic when he first heard gunshots, but on cross-examination, stated that at the point he
was engaged in taking his merienda.

Close examination of the record will, however, show that the supposed inconsistenceise adduced by
appellant Santos are either non-existent or clearly minor and inconsequential in character. The fact that
witness Bohol might not have remembered the kind of shoes appellant Santos was wearing onthat violent
occassion nor the color of the gunmen's weapons, is clearly inconsequential. Close scrutiny of the sworn
statement of Bohol (Exhibit "A") does not reveal any statement that he (Bohol) had picked out appellant
Santos from a seven (7) - person line-up nor does the transcript show that witness Bohol had identified
appellant Santos when appellant was alone with only one detainee in the investigation room at the police
station. 17 Appellant's counsel did not document his averments. Moreover, as pointed out by the Solicitor
General, 18 whether a police line-up considted of two (2) or seven (7) persons is actually immaterial since
a police line-up is not essential to a proper and positive identification. 19 Whether it was Bautista or
Cupcupin who had been driving the jeep and whether Bohol was direcitng traffic or enjoying his merienda
when the first gun shots rang out, cannot be regarded as critical in nature; such questions do not detract
from the basic facts that Bohol was in a position and Bautista and saw both assailants and the victims.
The netrenched principle is that minro inconsistencies in the testimony of a witness tend to strengthen
rather than to weaken the credibility of the witness as they erase any suspicion of rehearsed testimony. 20

In his second assignment of error, appellant Santos in effect questions the trial court for admitting a sworn
statement by one Ronaldo Guerrero (Exhibit "EE"), a witnesses in another criminal case (Criminal Case
No. 8117) where appellant Santos was also charged with the murder of one Daniel Nuguera which had
taken place in the very same site where Bautista and Cupcupin were ambushed, i.e., at the corner of
Yangco Street and Estrella Street, Malabon, Metro Manila. When the prosecution first presented the
sworn statement of Guerrero in order to show criminal propensity on the part of appellant Santos, the
defesne objected to admission of such sworn statment; the trial court sustained the objection and rejected
the evidence for the purpose it was initially offered. However, the trial court admitted the same as falling
within one or more of the exceptions set out in Section 34, Rule 130 of the Rules of Court, which reads:

Sec. 34. Similar Acts as Evifence. Evidence that one did or didnot do a certain thing at one time is not admissible to
prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, shceme, habit, custom or usage and the like. (Empahsis supplied).

Appellant Santos now complains that the affidavit of Ronaldo Guerrero was hearsay evidence, considering that the prosecution did not
present Ronaldo Guerrero as a witness during the trial. We consider that the trial court did not commit reversible error in admitting the
Guerrero affidavit for the limited purpose for provign knowledge or plan or shceme, and more specifically, that appellant knew that the
particular corner of two (2) particular streets in Manila was a good place to ambus a vehicle and its passenters. Appellant also had waived
the hearsay character of this evidence by failure seasonably to ojbect to the admission of the affidavit; it is too late in that day to raise the
hearsay rule in the appellant's memorandum after prosecution and defense had presented their respective cases and had made their
repsective offers of evidence. 21 Finally, and in any cae, as pointed out by the Solicitor General, the exclusion of
the Guerrero affidavit would not result in any change in the result reache by the trial court. For that result
is esentially and adequately based upon the positive identification of appellant Santos as one of the
gunmen by Baustisa and Bohol.

That it took the police authorities five (5) months to locate and apprehend appellant Santos who, it turned
out, resided close by the very locale of the ambush-slaying, did not in any way weaken the evidence of
the prosecution of detract from the conclusions reached by the trial court. The length of that period of time
shows only that police procedures are not always as efficient as they could be and that witnesses are
frequently reluctant to voluntee information to the police authorities in criminal cases, a point noted so
frequently as to have become a matter of judicial notice. 22

Finally, we come to the defense of alibi which appellant Santos raised before the trial court and which
was recounted by the trial court in the following manner:

Accused Raul Santos, after denying the accusations against him, insisted that he was on the date and time that
Cupcupin and Bautista were ambushed somwhere in Ibaan, Batangas to which place he went on May 20, 1989,
because his sister Teresita received a subpoena in a case involving one Apolonio Nuguera and which subpoena was
given to him by another sister named Isabel. Accused Santos claimed that he was surprised and confused by said
subpoena (Exh. 2) and had to got to Batangas while his sisters are verifying the complaint against him. Accused
Santos also maintained that from the time he left the place on June 12, 1989, he remained continuously in said place.

xxx xxx xxx

The testimony of accused Santos regarding his stay in Batangas was corroborated by Melinda David in show house he
stayed and by this sister Isabel Santos. 23

In respect of the weight properly given to a defense of a alibi, the Court has, times beyond numbering,
ruled that such defense is weak most especially when established exclusively or mainly by the accused
himself and his relatives and nto by independent and credible persons, 24 and that such a defense will not
prevail over the positive idenfication made by credible witnesses, 25 especially where the witness is the
victim-complainant himself.

WHEREFORE, for all the foregoing, we hold that the judgment of conviction rendered by the trial court
must be, and it is hereby, AFFIRMED with the following modifications: the civil indemnity payable to the
heirs of Glicerio Cupcupin shall be INCREASED to P50,000.00; the penalty of life imprisonment in
Criminal Case No. 8517-MN shall be CHANGED to reclusion perpetua, which is the proper imposable
penalty under the Revised Penal Code. Costs against apellant.

SO ORDERED.

Bidin, Davide Jr., Romero and Melo, JJ., concur.

People of the Philippines vs Nardo

EN BANC

[G.R. No. 133888. March 1, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO NARDO y ROSALES,


accused-appellant.

DECISION

PER CURIAM:

This case is before this Court on automatic review from the Regional Trial Court of Legazpi
City, Albay, Branch III, which imposed on accused-appellant the death penalty for rape in
Criminal Case No. 7170.

The victim, Lorielyn R. Nardo, is the eldest daughter of accused- appellant. She was born on
September 11, 1981 and, at the time of the incident, was fourteen ( 14) years old.xxiii[1]

On February 24, 1996, around noon, Lorielyn was in their house located in Barangay 3, Camalig,
Albay, together with her father, accused- appellant Alfredo Nardo, two younger brothers, Leonel
and Louie, and maternal grandfather, Vicente Remot. At 1 :30 o'clock in the afternoon, after they
had lunch, Vicente left for work. Alfredo told his sons, Leonel and Louie, to go out. He then
ordered Lorielyn to get his cigarettes in his bedroom. When Lorielyn went inside the bedroom,
her father followed her. He embraced Lorielyn from behind and began mashing her breasts.
Lorielyn pleaded, "Papa, please stop it. Have mercy. " Her father ignored her. Instead, he
undressed her and pushed her to the bed. Lorielyn started to cry , while Alfredo took off his
clothes. Then, he lay on top of her and had sexual intercourse with her. He kissed her from the
neck down. She tried to free herself but Alfredo took hold of a knife from a nearby cabinet and
pointed it at her right ear. He threatened to kill their whole family if Lorielyn told anyone what
he did. When he was finished, Alfredo left the house. During all this time, Lorielyn's mother,
Elizabeth Nardo, was washing clothes about five houses away.xxiv[2]

Elizabeth returned home at about 3:00 o'clock p.m. She saw Lorielyn crying while washing the
dishes. She asked Lorielyn why she was crying, but her daughter said nothing.xxv[3]

On March 19, 1996, Lorielyn was washing clothes when her father approached her and
whispered, "We will play tonight near the river. " Lorielyn understood this to mean that her
father wanted to have sexual intercourse with her again. She finished the laundry and left the
house. She took a passenger jeepney to Barangay Libod, Camalig, Albay and proceeded to the
house of her aunt, Carol Navera. She stayed there until her aunt arrived at around 5:00 o'clock in
the afternoon. When it became late, Carol told Lorielyn to go home, but she decided to spend the
night at her aunt's house because she was afraid to undergo the ordeal from her father
again.xxvi[4]

The next day, Lorielyn's brother, Leone, was sent by her father to fetch her, but she refused to go
with him. Her aunt asked her again why she did not want to go home. She merely said she had a
problem. She slept at her aunt's house again that night. The following day, her mother came to
fetch her. Lorielyn told her mother she did not want to go home. She said, "Mama, do you want
me to become pregnant in that house? " Her mother asked, "Who will impregnate you there? "
Lorielyn replied, "Your husband. " Her mother retorted that Alfredo could not do that to her, then
left.xxvii[5]

Lorielyn stayed at her aunt's house until March 22, 1996. On that date, Carol again asked
Lorielyn what her problem was. Finally, she told her aunt that her father raped her. Immediately,
Carol went to report the matter to the police. She later returned home with two policemen, and
together they brought Lorielyn to the Camalig Police Station. The rape was entered in the police
blotter.xxviii[6] The policemen then brought Lorielyn to the Municipal Health Office of Camalig,
Albay, where she was examined by Dr. Melvyn F . Orbe, the Municipal Health Officer.xxix[7]
From there Lorielyn was brought to the Municipal Trial Court of Camalig-Albay to file a formal
complaint for rape against her father, Alfredo Nardo.xxx[8]

On May 29, 1996, an Information for rape was filed against Alfredo Nardo, charging as follows:

That on or about the 24th day of February 1996, at more or less 1:30 o'clock in the afternoon, at
Brgy. No.3, Municipality of Camalig, Province of Albay, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, being the father of the herein victim, with
lewd and unchaste design, by means of violence, force and intimidation, armed with a knife, did
then and there wilfully, unlawfully and feloniously have carnal knowledge with her (sic) own
daughter, LORIELYN R. NARDO, a 14 year old girl, against her will and consent, to her
damage and prejudice.

ACTS CONTRARY TO LAWxxxi[9]

At the arraignment on August 8, 1996, accused-appellant pleaded not guilty.xxxii[10]

The prosecution presented Dr. Melvyn Orbe, who testified on the following findings as a result
of his examination of the victim, Lorielyn Nardo:

Pelvic Examination:

.:. whitish to yellowish discharge

.:. irritation lateral aspect of the posterior vulva at 3 o ' clock .

.:. healed laceration hymenal in origin posterior aspect of the fourchetxxxiii[11]

Dr. Orbe stated that based on these findings, it is possible that Lorielyn had sexual
intercourse.xxxiv[12]

Carolina Navera, testifying for the prosecution, corroborated Lorielyn's statement that the latter
went to her house on March 20, 1996. Lorielyn cried and told her that she did not want to go
home because she had a problem. Elizabeth, Lorielyn's mother, came to fetch her but she refused
to go home, saying that she was raped by her father. Upon hearing this, Elizabeth left and told
Carolina not to let Lorielyn leave her house. After Elizabeth was gone, Carolina went to the
police station. She returned later .with two policemen, who then brought Lorielyn to the police
headquarters. xxxv[13]

Ma. Francia Aguilar, the social welfare officer of the Department of Social Welfare and
Development, also testified that in the evening of March 22, 1996, she responded to a report of a
rape incident. She met the victim, Lorielyn Nardo, at the house of Cely Bantog, a social worker,
at Camalig, Albay. She interviewed Lorielyn and her mother, Elizabeth, tor the purpose of
preparing a Social Case Study report.xxxvi[14] Thereafter, she endorsed Lorielyn to the DSWD
Center for Girls in Sorsogon, Sorsogon to undergo therapeutics.xxxvii[15]

SPO3 Jose Nuylan, a member of the Camalig police force, testified that he investigated the rape
incident and took the statement of Lorielyn Nardo.xxxviii[16]

Elizabeth Nardo, the victim's mother, was called to the witness stand. She testified that she and
Alfredo are not married, but they have been living together. They have seven children, the eldest
of whom is Lorielyn. She stated that Lorielyn was born on September 11, 1981 at Anei, Claveria,
Misamis Oriental; that Lorielyn's birth certificate was burned in the Municipal Building of
Misamis Oriental.xxxix[17] However, Elizabeth presented and identified Lorielyn's baptismal
certificate showing that she was born on September 11,1981.xl[18]
The defense, on the other hand, presented lawyer Santer G. Gonzales, the employer of accused-
appellant. He testified that accused-appellant worked as a helper at his farm in Quirangay,
Camalig, Albay. On February 24, 1996, accused-appellant arrived at his farm before 8:00 o'clock
in the morning. He was followed by his father-in-law, Vicente Remot, who lived with him in the
same house. It started to rain hard, so they decided not to work that day. Vicente Remot went
home at around 8:30 or 9:00 o'clock in the morning. Accused-appellant stayed behind. After a
while, Paterno Ramas, a neighbor of Atty. Gonzales, arrived. They started to drink. None of
them left the farmhouse since Atty. Gonzales kept bottles of gin and cigarettes in stock. They
were joined later in thc afternoon by. Didjo Mujar, another friend of Atty. Gonzales. They drank
about five bottles of gin and sang while Atty. Gonzales played the guitar. The rain subsided at
around 3:30 o'clock in the afternoon, so they stopped drinking. At 4:00 o'clock in the afternoon,
accused-appellant left.xli[19] The farm is located around 400 to 500 meters away from Barangay
3, where accused-appellant and the victim reside, and can be reached in 15 minutes.xlii[20]

When asked to comment on the victim, Lorielyn Nardo, Atty. Gonzales described her as one
capable of telling a lie. He narrated that once, she went to his farm to collect the amount of
P50.00 as daily wage of her grandfather, Vicente Remot, but she gave only P35.00 to her mother.
Elizabeth thus went to Atty. Gonzales' to ask about the deficiency. They later learned from
Lorielyn ' s younger sister that she spent the missing P15.00 on snacks.xliii[21]

Vicente Remot, accused-appellant's father-in-law, corroborated Atty. Gonzales' testimony that he


reported for work at the latter's farm in the morning of February 24, 1996, but he was unable to
work because of the rain, so he went home instead, leaving accused-appellant in the farm. At 1
:00 o ' clock in the afternoon of that day, he was at home watching television with Elizabeth and
his grandchildren, including Lorielyn. He refuted Lorielyn's claim that he left after lunch to
work, saying that he stayed in the house the whole afternoon since it was raining.xliv[22]

Elizabeth also testified that on February 24, 1996, she was at home watching television with her
father and children, namely, Lorielyn, Lewcherd, Lailani, Leonel, Louie Boy and Leo Boy. All
her children were at home because it was a Saturday. She claimed that Lorielyn filed the
complaint for rape against her father because he was very strict with her. She learned from
Lorielyn's best friend that she had a problem with her boyfriend, a certain Erwin Loreno. At one
time, Lorielyn asked permission to attend a holy retreat, but Elizabeth found out from the school
that there was no such retreat. Lorielyn lied on another occasion, when she told Mrs. Bonifacia
"Paz" Nieva that her grandfather was sick so she can borrow money.xlv[23]

Mrs. Bonifacia Nieva testified that her daughter was a classmate of Lorielyn. Once, Lorielyn
visited her saying that she was sent by Elizabeth to borrow money because her grandfather was
sick. Mrs. Nieva gave Lorielyn P200.00. Later, when she went to see Elizabeth to collect
payment, she found out that Lorielyn ' s grandfather did not get sick. Lorielyn admitted to her
that she lied about it to be able to borrow money.xlvi[24]

The prosecution recalled Lorielyn to the witness stand by way of rebuttal evidence. She refuted
Atty. Gonzales' statement that she did not turn over in full the salary of her grandfather in the
amount of P50.00. She denied that she lied to her mother about a holy retreat held by her school.
Anent the amount of P200.00 she borrowed from Mrs. Nieva, she asserted that it was her father
who ordered her to do that, and that she gave the whole sum of P200.00 to him.xlvii[25]

On clarificatory questioning by the presiding judge, Lorielyn maintained that her grandfather,
Vicente Remot, indeed came home in the morning of February 24, 1996, but he left again to go
to Atty. Gonzales' farm after lunch. That afternoon, her mother was at the public faucet located
far away from their house washing clothes. The judge wondered aloud why she was doing the
laundry in the afternoon when this is usually done in the morning. Lorielyn replied that her
mother had started doing the laundry in the morning but that she was not able to finish it, so she
returned in the afternoon to continue her chore. She denied having any male friends, saying all
her friends are girls. When asked once more by the judge, Lorielyn reiterated that her father had
sexual intercourse with her.xlviii[26]

Carolina Nieva and Elizabeth Nardo were presented as sur-rebuttal witnesses. They testified in
sum that Lorielyn had a boyfriend.xlix[27]

Accused-appellant was presented as the last witness. He denied that he raped his daughter on
February 24, 1997, saying that he was at the farm of Atty. Gonzales. He scolded Lorielyn when
he learned from her sister and brother that she was always going around with a boy. He also
stated that

Lorielyn got mad at him because he did not permit her to leave the house whenever she wanted
to.l[28]

On March 3, 1998, the trial court rendered judgment as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, this court finds


the accused ALFREDO NARDO Y ROSALES GUlLTY BEYOND REASONABLE DOUBT of
the crime of RAPE and sentences him to suffer the penalty of DEATH. The said accused in
likewise ordered to pay Lorielyn Nardo the amount of Fifty Thousand Pesos (P50,000.00) for
moral damages.

For humanitarian reasons, however, it is recommended that the DEATH penalty be commuted to
RECLUSION PERPETUA.

SO ORDERED.li[29]

Accused-appellant raises the following assignment of errors:

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE


VICTIM LORIELYN AND DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II
THE TRIAL COURT ERRED IN REFUSING TO RECITE THE REASONS WHY IT WAS
RECOMMENDING EXECUTIVE CLEMENCY FOR THE ACCUSED.lii[30]

Accused-appellant assails the trial court's finding that Atty. Gonzales was his employer and
therefore was likely to testify in his favor; and that he could not have noticed accused-appellant
leave the farm in the afternoon of February 24, 1996 because he had one drink too many.
Accused-appellant contends that the court should not have been too quick to condemn him when
his witness was a lawyer. Furthermore, he argues that Lorielyn's conduct after the alleged rape,
specifically from February 25 to March 19, 1996, during which she stayed in the house with her
father and continued to do her daily chores, creates a doubt on the veracity of the charge.

In the Reply Brief for accused-appellant,liii[31] defense counsel reveals that Lorielyn wrote her
the following letter:

7-13-99

Dear Atty. De Guzman:

Ako nga po pala si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin pa sa ngayon sa
Maximum Security Compound NBP I-D Muntinlupa City. Sumulat po ako sa inyo upang humingi
ng tulong na gawin po sana ang lahat, wala po talagang kasalanan ang aking ama ako na po
mismong nag-akusa ang nagsasabi na walang katotohanan ang lahat ng mga sinabi ko na
pinagsamantalahan niya ako. Nagawa ko lang po yon dahil masyado po kasi siyang mahigpit sa
aming magkakapatid. Atty. tulungan ninyo sana ako, nalaman ko nga po pala ang inyong
address dahil dumalaw po ang mama ko noon sa papa ko at hiningi ko naman po para
masulatan ko po kayo.

Umaasa po akong lubos na ako'y inyong matutulungan.

Lubos na umaasa

LORIELYN
NARDOliv[32]

On May 4, 2000, counsel for accused-appellant filed a Supplemental Reply Brief,lv[33] alleging
that she received another letter from Lorielyn Nardo which states:

04-17-
2000

Dear Atty. Teresita de Guzman,

Unang-una po sa lahat ay nagpapasalamat po ako sa pag-response mo sa letter, Ako nga po


pala si Lorielyn Nardo na anak ni Mr. Alfredo Nardo na nakapiit ngayon sa DORM I-D ng
Muntinlupa ako po yung nagpadala ng liham sa inyo. Attorney, lagi ko pong ipinagdarasal na
nawa y matapos na ang paghihirap at pagdurusa ng aking ama sa loob ng piitan, naway
matapos na ang lahat ng problema upang manumbalik muli ang sigla ng aming pamilya.
Nagpapasalamat nga rin po pala ako sa ginagawa mong pagtulong sa amin, attorney nawa po
ay makamit nyo ang tagumpay.

Hanggang na lamang po ang aking liham, umaasa po ako sa inyong pang-unawa at tagumpay.

Nagpapasalamat at umaasa,

Lorielyn Nardolvi[34]

In compliance with the Court's Resolution dated November 14, 2000,lvii[35] the Office of the
Solicitor General filed its comment on the letters of Lorielyn Nardo,lviii[36] contending that there
is no mention of her father's innocence in her letter dated April 17, 2000. Rather, she merely
expressed therein her deep sympathy for her father's situation in prison. The Solicitor General
argues that a recantation is not sufficient to warrant the exoneration of accused-appellant after he
has been proven guilty beyond reasonable doubt based on Lorielyn's candid, categorical and
straightforwarrd testimony before the trial court.

In the meantime, counsel for accused-appellant, by way of a Manifestation and Motion,lix[37]


submitted two more letters from Lorielyn Nardo which are hereunder reproduced, viz:

August
10, 2000

Dear Attorney,

Unang-una po sa lahat ay ang taos-puso kong pasasalamat, sa dahilang pagpapaunlak niyo sa


kahilingan kong maipasa sa korte ang isang liham ng katotohanan, at kahit wala pa po ang
isang desisyon mula sa korte ay lubos po akong umaasa at nagtitiwala sa inyong kakayahan.
Attorney, kung alam niyo lang po ng matanggap at mabasa ang isang letter na nagmula sa yo ay
punung-puno po ng kaligayahan ang aking puso dahil kahit papaano ay nabawasan na ang pag-
aalinlangan sa aking isipan. Sa ngayon po ay patuloy na lang akong umaasa na sana isang araw
ay makita kong muling masaya ang aking pamilya. Attorney, isang pabor po ang nais kong
hilingin, na sana bago magpasko ay muli ko ng makasama ang aking ama, at gusto ko pong
maging ninyo 'to sa akin sa darating na pasko.

Hanggang dito na lamang po ang aking liham, at lubos po akong nagtitiwala sa inyong
kakayahan na mapapawalang sala ang aking ama.

Truly yours,

Lorielyn Nardolx[38]

January 17, 2001


Dear Atty. Teresita De Guzman,

Ako po muli si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin sa NBP Dorm-I-D
Muntinlupa. Kahit hindi po natupad ang hinihiling kong sanay makalaya ang aking ama noong
nakaraang Disyembre ay patuloy ko pa rin pong inaasahan at hinihiling ang inyong tulong na
sana po ay makalaya na ang aking ama. Patuloy pong nangingibabaw ang aking konsensiya
dahil sa aking ginawa, umaasa po ako na sana ay lalo pang mapadali ang paglabas niya sa loob
ng kulungan, maniwala po kayo wala siyang kasalanan. Attorney, alam ko po na ginagawa niyo
(po) ang lahat kaya't ngayon pa lang po ay nagpapasalamat ako sa inyo at patuloy na umaasa
ng inyong tulong at sanay maunawaan niyo ako.

Patuloy na umaasa,

Lorielyn Nardo
(anak)lxi[39]

Accused-appellant relies on these letters to obtain a reversal of the trial court's judgment of his
conviction. However, the said letters were not subscribed and sworn to by Lorielyn.

Be that as it may, recantations are frowned upon by the courts. A recantation of a testimony is
exceedingly unreliable, for there is always the probability that such recantation may later on be
itself repudiated. Courts look with disfavor upon retractions, because they can easily be obtained
from witnesses through intimidation or for monetary consideration. A retraction does not
necessarily negate an earlier declaration.lxii[40] Especially, recantations made after the conviction
of the accused deserve only scant consideration.lxiii[41]

Moreover, any recantation or affidavit of desistance, by itself, even when construed as a pardon
in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the
action has been instituted.lxiv[42] The pardon to justify the dismissal of the complaint should be
made prior to the institution of the criminal action.lxv[43] Parenthetically, the crime in the case at
bar was committed in 1996, i.e., prior to the passage of the R.A. 8353, The Anti-Rape Law of
1997, which reclassified rape as a crime against persons.

Even if it were sworn, Lorielyn's recantation could hardly suffice to overturn the finding of guilt
by the trial court which was based on her own clear and convincing testimony, given during a
full-blown trial. An affidavit of recantation, being usually taken ex parte, would be considered
inferior to the testimony given in open court. It would be a dangerous rule to reject the testimony
taken before a court of justice simply because the witness who gave it later on changed his/her
mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the
proceedings at the mercy of unscrupulous witnesses.lxvi[44]

As stated, the trial court arrived at its finding of guilt after a careful assessment of the evidence
presented, foremost of which was the testimony of the victim in open court, where the trial judge
was able to personally evaluate her manner of testifying, and from there reach a studied opinion
as to her credibility. As a rule, we do not disturb the findings by the trial court on the credibility
of witnesses, for the trial court is in a better position to pass upon the same.lxvii[45]
"The trial judge is in a better position to decide the question of credibility, since he personally
heard the witnesses and observed their deportment and manner of testifying. He had before him
the essential aids to determine whether a witness was telling the truth or lying. Truth does not
always stalk boldly forth naked; she often hides in nooks and crannies visible only to the minds
eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious
shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn,
the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the
carriage and mien."lxviii[46]

We find nothing in the records which would indicate that the findings of fact of the trial court are
not supported by the evidence or were arrived at in manifest or palpable error, such as to warrant
a departure from the foregoing rule. The trial court was correct in lending credibility to the
testimony of Lorielyn. The sole testimony of Lorielyn was sufficient to establish the guilt of
accused-appellant. It is settled that a person accused of rape can be convicted solely on the
testimony of the victim if the trial court finds said testimony to be credible, natural, convincing,
and consistent with human nature and the course of things.lxix[47]

Indeed, a daughter, especially one in her minority, would not accuse her own father of such an
unspeakable crime as incestuous rape had she really not been aggrieved.lxx[48] More importantly,
Lorielyn withstood all the rigors of the case, starting from the initial police interrogation, the
medical examination, the formal charge, the public trial, to the cross-examination. She went
through the court hearings, where she came face to face with her father. If it was true that she
merely made up the charge, she should have been bothered by her conscience at the sight of her
father in prison garb and upon the realization of his sorry state while in detention. The fact that
she maintained her story during her testimony-in-chief all the way up to her rebuttal testimony
only serves to substantiate the veracity of her claim.

Well settled is the rule that no woman would concoct a story of defloration, allow an
examination of her private parts and submit herself to public humiliation and scrutiny via an
open trial, if her sordid tale was not true and her sole motivation was not to have the culprit
apprehended and punished.lxxi[49] A young girls revelation that she has been raped, coupled with
her voluntary submission to medical examination and her willingness to undergo public trial
where she could be compelled to give out the details of an assault on her dignity by, as in this
case, her own father, cannot be so easily dismissed as a mere concoction.lxxii[50] Courts usually
give credence to the testimony of a girl who is a victim of sexual assault, particularly if it
constitutes incestuous rape because, normally, no person would be willing to undergo the
humiliation of a public trial and to testify on the details of her ordeal were it not to condemn an
injustice. Needless to say, it is settled jurisprudence that testimonies of child-victims are given
full weight and credit, since when a woman, more so if she is a minor, says that she has been
raped, she says in effect all that is necessary to show that rape was committed. Youth and
immaturity are generally badges of truth and sincerity.lxxiii[51]

During the trial, the defense endeavored to portray Lorielyn as an incorrigible liar. Occasions
were cited wherein Lorielyn supposedly lied in order to obtain money or her parents' permission
to leave the house. However, Rule 130, Section 34, of the Rules of Court provides that: Evidence
that one did or did not do a certain thing at one time is not admissible to prove that he did nor did
not do the same or a similar thing at another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. While
lying may constitute a habit, we believe that the falsehoods committed by Lorielyn, assuming
them for the moment to be true, are petty and inconsequential. They are not as serious as
charging one's own father of the sordid crime of rape, with all of its serious repercussions.

Accused-appellant argues that the trial court should have given credence to his witness, Atty.
Santer G. Gonzales, because he is a member of the bar. Atty. Gonzales, however, took the
witness stand not as a lawyer but as an ordinary person. He testified in his capacity as accused-
appellant's employer. As such, no special privilege should be accorded him by the trial court by
reason only of his being a member of the bar. He did not appear in that case as an officer of the
court but as a mere witness, and hence should be treated as one.

Likewise, accused-appellant insists that Lorielyn's conduct after the rape, during which she
continued to perform her tasks and lived with her father in their house, negates the commission
of rape. Accused-appellant's proposition is derived from Lorielyn's perfunctory yes-or-no
answers to the leading questions propounded to her on cross-examination. Rather than sustain
this argument, we rely instead on the observations of the Social Welfare Officer, whom we find
to be an impartial witness, in this wise:

Per observation, Lorielyn is a shy and silent type person. She talked in a very small voice and
during the interview she only talks when being asked. She also appears to be very sad and
have been staring blankly (sic).lxxiv[52]

Accused-appellant assigns as error the trial court's failure to give the reasons for recommending
the commutation of his sentence from death to reclusion perpetua. As correctly observed by the
Solicitor General, the trial court was impelled by humanitarian reason.lxxv[53] Moreover, the
commutation of sentence is a prerogative of the Chief Executive.

As against the positive and categorical testimony of Lorielyn, accused-appellant can only proffer
the defense of alibi. However, in order to overcome the evidence of the prosecution with the
defense of alibi, he must establish not only that he was somewhere else when the crime was
committed but also that it was physically impossible for him to have been at the scene of the
crime at the time it was committed.lxxvi[54] In the instant case, the testimonies for the defense
sought to establish that accused-appellant was 400 to 500 meters, or 15 minutes, away from the
scene of the crime. This hardly qualifies as proof that it was physically impossible for him to be
at the scene of the crime when it was committed. Accused-appellant's defense of alibi must,
therefore, necessarily fail.

Carefully sifting through the entire body of evidence presented in this case, we find nothing
which would destroy the moral certainty of accused-appellant's guilt. While there may be some
inconsistencies in the testimony of Lorielyn, these to our mind are minor inconsistencies which
serve to strengthen her credibility as they are badges of truth rather than indicia of
falsehood.lxxvii[55] Minor inconsistencies do not affect the credibility of witnesses, as they may
even tend to strengthen rather than weaken their credibility. Inconsistencies in the testimony of
prosecution witnesses with respect to minor details and collateral matters do not affect either the
substance of their declaration, their veracity, or the weight of their testimony. Such minor flaws
may even enhance the worth of a testimony, for they guard against memorized falsities.lxxviii[56]
Besides, a rape victim can not be expected to recall vividly all the sordid details of the violation
committed against her virtue.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law-spouse of the parent of the victim. xxx.lxxix[57]

The concurrence of the two special qualifying circumstances, namely the victim's minority and
the relationship between the victim and the culprit, increases the penalty of rape to one (1)
degree, thus resulting in the imposition of the death penalty. In order to be appreciated as
qualifying circumstances, however, these must be properly pleaded in the indictment.lxxx[58] In
addition, the qualifying circumstances should be duly proved during the trial.lxxxi[59]

These requirements are met in this case. The Information sufficiently alleges that accused-
appellant is the father of the victim, and that the latter was fourteen (14) years old at the time of
commission of the rape. These elements, furthermore, were categorically affirmed by Elizabeth
Nardo, the victim's mother and the most competent witness. She testified that accused-appellant
is Lorielyn's father, and that Lorielyn was born on September 11, 1981,lxxxii[60] thus placing her
age at the time of the rape at fourteen (14) years. Moreover, the Lorielyn's birth date and her
relationship to accused-appellant are shown by her Certificate of Baptism.lxxxiii[61] This was
presented by her mother, Elizabeth, in lieu of her Certificate of Live Birth, which was destroyed
by fire.lxxxiv[62] The baptismal certificate, coupled by her mother's testimony, is sufficient to
establish Lorielyn's age.lxxxv[63]

We therefore affirm the trial court's imposition of the death penalty.

Four justices of the Court have continued to maintain the unconstitutionality of Republic Act No.
7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the
majority to the effect that this law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.

We likewise affirm the award of P50,000.00 for moral damages which is consistent with
prevailing jurisprudence.lxxxvi[64] No proof is required to substantiate the award of moral
damages in rape cases. In People vs. Prades,lxxxvii[65] we held:

xxx. The Court has also resolved that in crimes of rape, such as that under consideration, moral
damages may additionally be awarded to the victim in the criminal proceeding, in such amount
as the Court deems just, without the need for pleading or proof of the basis thereof as has
heretofore been the practice. Indeed, the conventional requirement of allegata et probata in civil
procedure and for essentially civil cases should be dispensed with in criminal prosecutions for
rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such
allegations can be made.

Corollarily, the fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the bases for moral damages are too obvious to still
require the recital thereof at the trial by the victim, since the Court itself even assumes and
acknowledges such agony on her part as a gauge of her credibility. What exists by necessary
implication as being ineludibly present in the case need not go through the superfluity of still
being proved through a testimonial charade.

In addition to moral damages, the amount of P75,000.00 is awarded to the victim as indemnity.

xxx. Indictments for rape continue unabated and the legislative response has been in the form of
higher penalties. The Court believes that, on like considerations, the jurisprudential path on the
civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of
rape is committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the indemnity for the victim shall be in the
increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal
perception of the penal law and the financial fluctuations over time, but also an expression of the
displeasure of the Court over the incidence of heinous crimes against chastity.lxxxviii[66]

WHEREFORE, the judgment of the Regional Trial Court of Legaspi City, Albay, Branch III,
convicting accused-appellant Alfredo Nardo y Rosales of the crime of rape, sentencing him to
death, and ordering him to pay the victim, Lorielyn Nardo moral damages in the amount of
P50,000.00, is AFFIRMED with the MODIFICATION that accused-appellant is, further, ordered
to pay the victim civil indemnity in the amount of P75,000.00.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised
Penal Code, upon finality of this decision, let certified true copies thereof, as well as the records
of this case, be forwarded without delay to the office of the President for possible exercise of the
clemency or pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ.,
concur.

Republic of the Philippines vs Heirs of Alejaga Sr.

THIRD DIVISION

[G.R. No. 146030. December 3, 2002]


REPUBLIC OF THE PHILIPPINES, represented by the Department of Environment and Natural
Resources, petitioner, vs. HEIRS OF FELIPE ALEJAGA SR., represented by ROQUETA
ALEJAGA, FELIPE ALEJAGA JR., MARIA DULLA ALEJAGA, FELIPE ALEJAGA III,
ROQUETA ALEJAGA, JENNIFER ALEJAGA, EVERETTE CAPUNDAN, AND LYNETTE
ALEJAGA; THE PHILIPPINE NATIONAL BANK and THE REGISTER OF DEEDS OF
ROXAS CITY, respondents.

DECISION

PANGANIBAN, J.:

We reiterate the familiar doctrine that a free patent obtained through fraud or misrepresentation
is void. Furthermore, the one-year prescriptive period provided in the Public Land Act does not
bar the State from asking for the reversion of property acquired through such means.

Statement of the Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing
the November 15, 2000 Decision278[1] of the Court of Appeals (CA) in CA-GR CV No. 44568.
The decretal portion of the challenged Decision reads as follows:

WHEREFORE, the appealed decision is hereby REVERSED, SET ASIDE and


RECALLED.279[2]

The Facts

The factual antecedents of the case are summarized by the CA thus:

On December 28, 1978, [Respondent] Felipe Alejaga, Sr. x x x filed with the District Land
Office, Roxas City, Free Patent Application No. (VI-2) 8442 covering a parcel of land identified
as Lot 1, Mli-06-000020-D, with an area of .3899 hectares, more or less located at Dumolog,
Roxas City (Exh. A; Exh 9). It appears that on December 27, 1978, when the application was
executed under oath, Efren L. Recio, Land Inspector, submitted a report of his investigation and
verification of the land to the District Land Office, Bureau of Lands, City of Roxas. On March
14, 1979, the District Land Officer of Roxas City approved the application and the issuance of
[a] Free Patent to the applicant. On March 16, 1979, the patent was also ordered to be issued and
the patent was forwarded to defendant Register of Deeds, City of Roxas, for registration and
issuance of the corresponding Certificate of Title. Thereafter, Original Certificate of Title No. P-
15 Free Patent No. (VI-2) 3358 was issued to [respondent] by defendant Register of Deeds.

On April 4, 1979, the heirs of Ignacio Arrobang, through counsel in a letter-complaint requested
the Director of Lands, Manila, for an investigation of the District Land Officer, Roxas City, and
the Regional Office, Region VI, Iloilo City, for irregularities in the issuance of the title of a
foreshore land in favor of [respondent]. Isagani Cartagena, Supervising Special Investigator,
Legal Division, Land Management Bureau (formerly Bureau of Lands) submitted his Report
dated April 17, 1989. The Chief, Legal Division, Land Management Bureau, Manila,
recommended to the Director of Lands appropriate civil proceeding for the cancellation of Free
Patent Title No. (VI-2) 3358 and the corresponding Original Certificate of Title No. P-15 in the
name of [respondent].

In the meantime, [respondent] obtained a NACIDA loan under the Cottage Industry Guarantee
and Loan Fund by the defendant Philippine National Bank (hereinafter referred to as PNB)
executed in Cebu City in the amount of P100,000.00 on August 18, 1981. The loan was secured
by a real estate mortgage in favor of defendant PNB. The promissory note of appellant was
annotated at the back of the title.

On April 18, 1990, the government through the Solicitor General instituted an action for
Annulment/Cancellation of Patent and Title and Reversion against [respondent], the PNB of
Roxas City and defendant Register of Deeds of Roxas City covering Free Patent Application
(VI-2) 8442 of the parcel of land with an area of .3899 hectares more or less located at Dumolog,
Roxas City.

On November 17, 1990, while the case is pending hearing, [respondent] died. He was substituted
by his wife Roqueta Alejaga and his children, namely: Everette Alejaga, Lynnette Alejaga,
Felipe Alejaga, Jr., Maria Dulla Alejaga. Roqueta Alejaga, Jennifer Alejaga and Felipe Alejaga
III.

xxx xxx xxx

After hearing, the [trial] court in its dispositive portion decreed as follows:

WHEREFORE, judgment is rendered declaring that the approval of Free Patent Application No.
3358 and issuance of Original Certificate of Title No. P-15 in the name of Felipe Alejaga is by
means of fraud hence, null and void ab initio and the court orders:

a) the cancellation of the approval of the application No. (VI-2) 8442 covering Lot No. 1,
Mli-06-000020-D with an area of .3899 hectares, more or less, located at Dumulog, Roxas City;

b) the cancellation of Original Certificate of Title No. P-15, Free Patent No. (VI-2) 3358 in
the name of Felipe Alejaga;

c) the land covered thereby as above described is reverted to the mass of the public domain;

d) the defendants, Heirs of Felipe Alejaga Sr. or defendant, Philippine National Bank, Roxas
City Branch, to surrender the owners duplicate copy of above described Original Certificate of
Title No. P-15 to the Register of Deeds (now Registries of Land Titles and Deeds), Roxas City;
e) the defendant, Register of Deeds, Roxas City, to cancel Original Certificate of Title No.
P-15 and the owners duplicate copy of said title surrendered by above stated defendants;

f) defendants, Philippine National Bank, cross-claim is dismissed.

Costs against the defendants Heirs of Felipe, Alejaga, Sr.280[3]

Ruling of the Court of Appeals

In reversing the RTC, the CA ruled that petitioner failed to prove its allegation that respondents
had obtained the free patent and the Certificate of Title through fraud and misrepresentation.281[4]
The appellate court likewise held that, assuming there was misrepresentation or fraud as claimed
by petitioner, the action for reversion should have been brought within one (1) year from the
registration of the patent with the Registry of Deeds.282[5]

Further, the CA brushed aside as hearsay Isagani Cartagenas testimony that Land Inspector Efren
L. Recio had not conducted an investigation on the free patent application of Felipe Alejaga
Sr.283[6] The CA added that petitioner had failed to support its claim that the lot covered by
respondents free patent and title was foreshore land.284[7]

Hence, this Petition.285[8]

Issues

Petitioner raises the following issues for this Courts consideration:

The Honorable Court of Appeals erred in not finding that the case is already final and executory
as against respondent PNB.

II

The Court of Appeals erred in not considering that petitioner has proven the allegations to the
Complaint.
III

The Honorable Court of Appeals erred in declaring that the action for reversion is
unavailing.286[9]

Simply stated, the issues can be summed up into two: (1) the efficacy of the grant of the free
patent and (2) the indefeasibility of the Certificate of Title issued in consequence thereof.

This Courts Ruling

The Petition is meritorious.

First Issue:
Efficacy of the Grant

Petitioner argues that it has proven fraud in the issuance of Respondent Alejagas free patent and
Certificate of Title.287[10] It also avers that Respondent PNB has failed to file a timely Notice of
Appeal.

On the other hand, the Alejagas contend that they have acquired a vested right over the parcel of
land covered by OCT No. P-15 by virtue of their proven open, actual, exclusive and undisputed
possession of the land for more than 30 years.288[11]

At the outset, we must immediately clarify that the records show receipt by Respondent PNB of
a copy of the Decision on October 27, not on October 3, 1993 as alleged by petitioner.289[12]
Further, the bank filed its Notice of Appeal on November 9, 1993, within the 15-day
reglementary period.

In addition, we must point out that the essential issue raised in this Petition -- the presence of
fraud -- is factual. As a general rule, this Court does not review factual matters.290[13] However,
the instant case falls under one of the exceptions, because the findings of the CA conflict with
those of the RTC and with the evidence on record.291[14]
We begin our resolution of this issue with the well-settled rule that the party alleging fraud or
mistake in a transaction bears the burden of proof.292[15] The circumstances evidencing fraud are
as varied as the people who perpetrate it in each case.293[16] It may assume different shapes and
forms; it may be committed in as many different ways.294[17] Thus, the law requires that it be
established by clear and convincing evidence.295[18]

In the case before us, we find that petitioner has adduced a preponderance of evidence before the
trial court, showing manifest fraud in procuring the patent.296[19] This Court agrees with the RTC
that in obtaining a free patent over the lot under scrutiny, petitioner had resorted to
misrepresentation or fraud, signs of which were297[20] ignored by the Court of Appeals.298[21]

First, the issuance of the free patent was not made in accordance with the procedure laid down
by Commonwealth Act No. 141, otherwise known as the Public Land Act.299[22] Under Section
91 thereof, an investigation should be conducted for the purpose of ascertaining whether the
material facts set out in the application are true.300[23]

Further, after the filing of the application, the law requires sufficient notice to the municipality
and the barrio where the land is located, in order to give adverse claimants the opportunity to
present their claims.301[24] Note that this notice and the verification and investigation of the parcel
of land are to be conducted after an application for free patent has been filed with the Bureau of
Lands.

In this case, however, Felipe Alejaga Sr.s Application for Free Patent302[25] was dated and filed
on December 28, 1978. On the other hand, the Investigation & Verification Report303[26] prepared
by Land Inspector Elfren L. Recio of the District Land Office of the Bureau of Lands of Roxas
City was dated December 27, 1978. In that Report, he stated that he had conducted the necessary
investigation and verification in the presence of the applicant. Even if we accept this statement as
gospel truth, the violation of the rule cannot be condoned because, obviously, the required notice
to adverse claimants was not served.

Evidently, the filing of the application and the verification and investigation allegedly conducted
by Recio were precipitate and beyond the pale of the Public Land Act.304[27] As correctly pointed
out by the trial court, investigation and verification should have been done only after the filing of
the application. Hence, it would have been highly anomalous for Recio to conduct his own
investigation and verification on December 27, 1998, a day before Felipe Alejaga Sr. filed the
Application for Free Patent.305[28] It must also be noted that while the Alejagas insist that an
investigation was conducted, they do not dispute the fact that it preceded the filing of the
application.306[29]

Second, the claim of the Alejagas that an actual investigation was conducted is not sustained by
the Verification & Investigation Report itself, which bears no signature.307[30] Their reliance on
the presumption of regularity in the performance of official duty308[31] is thus misplaced. Since
Recios signature does not appear on the December 27, 1978 Report, there can be no presumption
that an investigation and verification of the parcel of land was actually conducted. Strangely,
respondents do not proffer any explanation why the Verification & Investigation Report was not
signed by Recio. Even more important and as will later on be explained, this alleged presumption
of regularity -- assuming it ever existed -- is overcome by the evidence presented by petitioner.

Third, the report of Special Investigator Isagani P. Cartagena has not been successfully rebutted.
In that report, Recio supposedly admitted that he had not actually conducted an investigation and
ocular inspection of the parcel of land. Cartagenas statement on Recios alleged admission may
be considered as independently relevant. A witness may testify as to the state of mind of another
person -- the latters knowledge, belief, or good or bad faith -- and the formers statements may
then be regarded as independently relevant without violating the hearsay rule.309[32]

Thus, because Cartagena took the witness stand and opened himself to cross-examination, the
Investigation Report310[33] he had submitted to the director of the Bureau of Lands constitutes
part of his testimony. Those portions of the report that consisted of his personal knowledge,
perceptions and conclusions are not hearsay.311[34] On the other hand, the part referring to the
statement made by Recio may be considered as independently relevant.312[35]

The doctrine on independently relevant statements holds that conversations communicated to a


witness by a third person may be admitted as proof that, regardless of their truth or falsity, they
were actually made. Evidence as to the making of such statements is not secondary but primary,
for in itself it (a) constitutes a fact in issue313[36] or (b) is circumstantially relevant to the
existence of such fact.314[37]

Since Cartagenas testimony was based on the report of the investigation he had conducted, his
testimony was not hearsay and was, hence, properly admitted by the trial court.315[38]

Based on the foregoing badges of fraud, we sustain petitioners contention that the free patent
granted to Felipe Alejaga Sr. is void.316[39] Such fraud is a ground for impugning the validity of
the Certificate of Title.317[40] The invalidity of the patent is sufficient basis for nullifying the
Certificate of Title issued in consequence thereof, since the latter is merely evidence of the
former.318[41] Verily, we must uphold petitioners claim that the issuance of the Alejagas patent
and title was tainted with fraud.319[42]

Second Issue:
Indefeasibility of Title

Petitioner contends that the State has an imprescriptible right to cause the reversion of a piece of
property belonging to the public domain.320[43] On the other hand, the Alejagas claim that,
pursuant to Section 32 of PD 1529321[44] -- otherwise known as the Property Registration Decree
-- the one-year period for reversion has already lapsed.322[45] Thus, the States Complaint for
reversion should be dismissed.

We agree with petitioner.

True, once a patent is registered and the corresponding certificate of title issued, the land covered
by them ceases to be part of the public domain and becomes private property. Further, the
Torrens Title issued pursuant to the patent becomes indefeasible a year after the issuance of the
latter.323[46] However, this indefeasibility of a title does not attach to titles secured by fraud and
misrepresentation.324[47] Well-settled is the doctrine that the registration of a patent under the
Torrens System does not by itself vest title; it merely confirms the registrants already existing
one. Verily, registration under the Torrens System is not a mode of acquiring ownership.325[48]

Therefore, under Section 101 of Commonwealth Act No. 141,326[49] the State -- even after the
lapse of one year -- may still bring an action for the reversion to the public domain of land that
has been fraudulently granted to private individuals.327[50] Further, this indefeasibility cannot be a
bar to an investigation by the State as to how the title has been acquired, if the purpose of the
investigation is to determine whether fraud has in fact been committed in securing the title.328[51]

In the case before us, the indefeasibility of a certificate of title cannot be invoked by the
Alejagas, whose forebear obtained the title by means of fraud.329[52] Public policy demands that
those who have done so should not be allowed to benefit from their misdeed.330[53] Thus,
prescription and laches will not bar actions filed by the State to recover its own property acquired
through fraud by private individuals.331[54] This is settled law.332[55]

Prohibition Against Alienation


or Encumbrance
Assuming arguendo that the Alejagas title was validly issued, there is another basis for the
cancellation of the grant and the reversion of the land to the public domain. Section 118 of
Commonwealth Act No. 141333[56] proscribes the encumbrance of a parcel of land acquired under
a free patent or homestead within five years from its grant.334[57] The prohibition against any
alienation or encumbrance of the land grant is a proviso attached to the approval of every
application.335[58]

Further, corporations are expressly forbidden by law to have any right or title to, or interest in,
lands that are granted under free or homestead patents; or any improvements thereon. They are
forbidden from enjoying such right, title or interest, if they have not secured the consent of
the grantee and the approval of the secretary of the Department of Agriculture and Natural
Resources; and if such lands are to be devoted to purposes other than education, charity, or
easement of way. 336[59]

In the case at bar, Free Patent No. (VI-2) 3358337[60] was approved and issued on March 14,
1979. Corresponding Original Certificate of Title No. P-15338[61] was issued on the same date. On
August 18, 1981, or two (2) years after the grant of the free patent, Felipe Alejaga Sr. obtained
from Respondent PNB a loan339[62] in the amount of P100,000. Despite the statement on the title
certificate itself that the land granted under the free patent shall be inalienable for five (5) years
from the grant, a real estate mortgage was nonetheless constituted on the parcel of land covered
by OCT No. P-15.340[63] In his testimony, Gabriel D. Aranas Jr., then Cashier III of respondent
bank, even admitted that the PNB was aware of such restriction.

COURT You testified Mr. Aranas that you inspected the title also when you credit
investigated the loan applicant Felipe Alejaga and you have personally examined
this?

A Yes, your Honor.

COURT Do you conclude that this Original Certificate of Title is a [free] patent?
A Yes, your Honor.

COURT And this [free] patent was granted on March 19, 1979.

A Yes, your honor.

COURT And as such [free] patent it cannot be alienated except [to] the government or
within five years from its issuance?

A Yes, your honor.

COURT Why did you recommend the loan?

A Because it is just a mortgage.341[64]

Thus, the mortgage executed by Respondent Felipe Alejaga Sr. falls squarely within the term
encumbrance proscribed by Section 118 of the Public Land Act.342[65] A mortgage constitutes a
legal limitation on the estate, and the foreclosure of the mortgage would necessarily result in the
auction of the property.343[66]

As early as Pascua v. Talens,344[67] we have explained the rationale for the prohibition against the
encumbrance of a homestead -- its lease and mortgage included -- an encumbrance which, by
analogy, applies to a free patent. We ruled as follows:

It is well-known that the homestead laws were designed to distribute disposable agricultural lots
of the State to land-destitute citizens for their home and cultivation. Pursuant to such benevolent
intention the State prohibits the sale or encumbrance of the homestead (Section 116) within five
years after the grant of the patent.

Further, an encumbrance on a parcel of land acquired through free patent constitutes sufficient
ground for the nullification of such grant, as provided under Commonwealth Act No. 141, which
we quote:

SEC. 124. Any acquisition, conveyance, alienation, transfer, or other contract made or executed
in violation of any of the provisions of sections one hundred and eighteen, one hundred and
twenty, one hundred and twenty-one, one hundred and twenty-two, and one hundred and twenty-
three of this Act shall be unlawful and null and void from its execution and shall produce the
effect of annulling and canceling the grant, title, patent, or permit originally issued, recognized
or confirmed, actually or presumptively, and cause the reversion of the property and its
improvements to the State.

Mortgage over a parcel of land acquired through a free patent grant nullifies the award and
constitutes a cause for the reversion of the property to the state, as we held in Republic v. Court
of Appeals:345[68]

The foregoing legal provisions clearly proscribe the encumbrance of a parcel of land acquired
under a free patent or homestead within five years from the grant of such patent. Furthermore,
such encumbrance results in the cancellation of the grant and the reversion of the land to the
public domain.346[69]

To comply with the condition for the grant of the free patent, within five years from its issuance,
Felipe Alejaga Sr. should not have encumbered the parcel land granted to him. The mortgage he
made over the land violated that condition.347[70] Hence, the property must necessarily revert to
the public domain, pursuant to Section 124 of the Public Land Act.

WHEREFORE, the Petition is GRANTED and the assailed Decision SET ASIDE. The Decision
of the RTC of Roxas City (Branch 15) dated October 27, 1993 is REINSTATED. No costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Puno, (Chairman), J., abroad on official business.

e. Hearsay Evidence Rule

Patula vs People of the Philippines

FIRST DIVISION

G.R. No. 164457 April 11, 2012


ANNA LERIMA PATULA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

In the trial of everycriminal case, a judge must rigidlytest the States evidence of guilt in order to
ensure that such evidenceadheres to the basic rules of admissibility before pronouncing an
accused guilty of the crime charged upon such evidence. Nothing less is demanded of the judge;
otherwise, the guarantee of due process of law is nullified.The accused need
notadduceanythingto rebut evidence that is discredited for failing the test.Acquittal should then
follow.

Antecedents

Petitioner was charged withestafaunder an informationfiled in the Regional Trial Court (RTC) in
DumagueteCitythat averred:

That on or about and during the period from March 16 to 20, 1997 and for sometime prior
thereto, in the City of Dumaguete, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, being then a saleswoman of Footluckers Chain of Stores, Inc.,
Dumaguete City, having collected and received the total sum of P131,286.97 from several
customers of said company under the express obligation to account for the proceeds of the sales
and deliver the collection to the said company, but far from complying with her obligation and
after a reasonable period of time despite repeated demands therefore, and with intent to defraud
the said company, did, then and there willfully, unlawfully and feloniously fail to deliver the said
collection to the said company but instead, did, then and there willfully unlawfully and
feloniously misappropriate, misapply and convert the proceeds of the sale to her own use and
benefit, to the damage and prejudice of the said company in the aforesaid amount of
P131,286.97.

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.1

Petitioner pled not guiltyto the offense charged in the information. At pre-trial, no stipulation of
factswas had, and petitioner did not avail herself of plea bargaining. Thereafter, trial on the
merits ensued.

The Prosecutions first witness was Lamberto Go, who testified that he was the branch manager
of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete City since October 8, 1994;
that petitioner was an employee of Footluckers, starting as a saleslady in 1996 until she became
a sales representative; that as a sales representative she was authorized to take orders from
wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia,
Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them;
that she could issue and sign official receipts of Footluckers for the payments, which she would
then remit; that she would then submit the receipts for the payments for tallying and
reconciliation; that at first her volume of sales was quite high, but later on dropped, leading him
to confront her; that she responded that business was slow; that he summoned the accounting
clerk to verify; that the accounting clerk discovered erasures on some collection receipts; that he
decided to subject her to an audit by company auditor Karen Guivencan; that he learned from a
customer of petitioners that the customers outstanding balance had already been fully paid
although that balance appeared unpaid in Footluckers records; and that one night later on,
petitioner and her parents went to his house to deny having misappropriated any money of
Footluckers and to plead for him not to push through with a case against her, promising to settle
her account on a monthly basis; and that she did not settle after that, but stopped reporting to
work.2

On March 7, 2002, Gos cross examination, re-direct examination and re-crossexamination were
completed.

The only other witness for the Prosecution was Karen Guivencan, whomFootluckers employed
as its store auditor since November 16, 1995 until her resignation on March 31, 2001. She
declared that Go had requested her to audit petitioner after some customers had told him that
they had already paid their accounts but the office ledger had still reflected outstandingbalances
for them; that she first conducted her audit by going to the customers in places from Mabinay to
Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered in the course of her
audit that the amounts appearing on the original copies of receipts in the possession of around 50
customers varied from the amounts written on the duplicate copies of the receipts petitioner
submitted to the office; that upon completing her audit, she submittedto Go a written report
denominated as "List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences
in Records as per Audit Duly Verified March 16-20, 1997" marked as Exhibit A; and that based
on the report, petitioner had misappropriated the total amount ofP131,286.92.3

During Guivencans stint as a witness, the Prosecution marked the ledgers of petitioners various
customers allegedly with discrepancies as Exhibits B to YYand their derivatives, inclusive. Each
of the ledgers had a first column that contained the dates of the entries, a second that identified
the invoices by the number, a third that statedthe debit, a fourth that noted the credit (or the
amounts paid), and a fifth that summed the balances (debit minus credit).Only 49 of
theledgerswere formally offered and admitted by the RTC because the 50thledger could no
longer be found.

In the course of Guivencansdirect-examination,petitioners counsel interposed a continuing


objection on the ground that the figuresentered in Exhibits B to YYand their derivatives,
inclusive, were hearsay because the persons who had made the entries were not themselves
presented in court.4With that, petitioners counsel did not anymore cross-examine Guivencan,
apparently regarding her testimony to be irrelevant because she thereby tended to prove
falsification, an offense not alleged in the information.

TheProsecution thenformally offered its documentary exhibits, including Exhibits B to YYand


their derivatives (like the originals and duplicates of the receipts supposedly executed and issued
by petitioner), inclusive, the confirmation sheets used by Guivencan in auditing the accounts
served by petitioner, and Guivencans so-called Summary (Final Report) of Discrepancies.5

After the Prosecution rested its case, the Defense decided not to file a demurrer to evidence
although it had manifested the intention to do so, and instead rested itscase.The Prosecution and
Defense submitted their respective memoranda, and submitted the case for decision.6

On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted "not to present
evidence for her defense" the Prosecutions evidence remained "unrefuted and
uncontroverted,"7rendered its decision finding petitioner guilty of estafa, to wit:

Wherefore, in the light of the foregoing facts and circumstances, the Court finds ANNA
LERIMA PATULA guilty beyond reasonable doubt of the crime of Estafa under Art. 315 par
(1b) of the Revised Penal Code and accordingly, she is hereby sentenced to suffer an
INDETERMINATE PENALTY of imprisonment of 8 years and 1 day of prision mayor as
minimum to 18 years and 4 months of reclusion temporal as maximum with all the accessory
penalties provided by law and to indemnify private complainant the amount of P131,286.92 with
interest at 12% per annum until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, the cash bail put up by
the accused shall be effective only until the promulgation of this judgment.

SO ORDERED.8

Petitioner filed a motion for reconsideration, butthe RTC denied the motion on May 7, 2004.9

Issues

Insisting that the RTCs judgment "grossly violated [her] Constitutional and statutory right to be
informed of the nature and cause of the accusation against her because, while the charge against
her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented against
her and upon which her conviction was based, was falsification, an offense not alleged or
included in the Information under which she was arraigned and pleaded not guilty," and that said
judgment likewise "blatantly ignored and manifestly disregarded the rules on admission of
evidence in that the documentary evidence admitted by the trial court were all private
documents, the due execution and authenticity of which were not proved in accordance with Sec.
20 of Rule 132 of the Revised Rules on Evidence," petitioner has directly appealed to the Court
via petition for review on certiorari, positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER ,


CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL
CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION
WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION.

2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND STATUTORY RIGHT


TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION
AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY
EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST
HER IS ESTAFA THROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B)
OF THE REVISED PENAL CODE.

3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN


EVIDENCE, EXHIBITS "B" TO "YY"-"YY-2", ALL PRIVATE DOCUMENTS, THE
DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN
ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON
EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE
FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR
ALLEGED IN THE INFORMATION.

4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE


TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID
TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED
EXHIBITS "B" TO "YY"-"YY-2"INCLUSIVE VIOLATED THE ACCUSEDS
CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED IS ESTAFA
UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.

5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT THE


EVIDENCE OF THE PROSECUTION "REMAINS UNREFUTED AND
UNCONTROVERTED" DESPITE ACCUSEDS OBJECTION THAT SAID
EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.

6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING KAREN


GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND
IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN
INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS
BEING "UNREFUTED AND UNCONTROVERTED", AND WHETHER OR NOT
THE DEFENSES OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE
DEFENSE CROSS-EXAMINED SAID WITNESS.

7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT


"A", WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN
LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND
SELF-SERVING.10

The foregoing issues are now restatedas follows:

1. Whether or not the failure of the information for estafa to allege the falsification of the
duplicate receipts issued by petitioner to her customersviolated petitioners right to be
informed of the nature and cause of the accusation;
2. Whether or not the RTC gravely erred in admitting evidence of the falsification of the
duplicate receiptsdespite the information not alleging the falsification;

3. Whether or not the ledgers and receipts (Exhibits B to YY, and their derivatives,
inclusive) were admissible as evidence of petitioners guilt for estafaas charged despite
their not being duly authenticated;and

4. Whether or not Guivencanstestimony onthe ledgers and receipts (Exhibits B to YY,


and their derivatives, inclusive) to prove petitioners misappropriation or conversion
wasinadmissible for being hearsay.

Ruling

The petition is meritorious.

Failure of information to allege falsification


did not violate petitioners right to be informed
of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be informed of the
nature and cause of the accusation when: (a) it held that the information did not have to allege
her falsification of the duplicate receipts, and (b) when it convicted her of estafa under Article
315, paragraph 1(b) of the Revised Penal Codeby relying on the evidence on falsification.

The contentionof petitioner cannot be sustained.

The Bill of Rights guaranteessome rightsto every person accused of a crime, among them the
right to be informed of the nature and cause of the accusation, viz:

Section 14. (1) No person shall be held to answer for a criminal offense without due process of
law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable.

Rule 110 of the Revised Rules of Court, the rule then in effect when the information was filed in
the RTC, contained the following provisions on the proper manner of alleging the nature and
cause of the accusation in the information, to wit:
Section 8.Designation of the offense. Whenever possible, a complaint or information should
state the designation given to the offense by the statute, besides the statement of the acts or
omissions constituting the same, and if there is no such designation, reference should be made to
the section or subsection of the statute punishing it. (7)

Section 9.Cause of accusation. The acts or omissions complained of as constituting the offense
must be stated in ordinary and concise language without repetition, not necessarily in the terms
of the statute defining the offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable the court to pronounce
proper judgment. (8)

The importance of the proper manner of alleging the nature and cause of the accusation in the
informationshould never be taken for granted by the State. An accused cannot be convicted of an
offense that is not clearly charged in the complaint or information. To convict him of an offense
other than that charged in the complaint or information would be violative of the Constitutional
right to be informed of the nature and cause of the accusation.11 Indeed, the accused cannot be
convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in
the information filed against him.

The crime of estafacharged against petitioner was defined and penalized by Article 315,
paragraph 1 (b), Revised Penal Code, viz:

Article 315. Swindling (estafa). Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.
In such cases, and in connection with the accessory penalties which may be imposed
under the provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the
amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos,
provided that in the four cases mentioned, the fraud be committed by any of the following
means:

xxx
1. With unfaithfulness or abuse of confidence, namely:

xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property.

xxx

The elements of the offense charged were as follows:

(a) That the offender received money, goods or other personal property in trust, or on
commission, or for administration, or under any other obligation involving the duty to
make delivery of, or to return, the same;

(b) That the offender misappropriated or converted such money, goods or other personal
property, or denied his part in its receipt;

(c) That the misappropriation or conversion or denial was to the prejudice of another; and

(d) That the offended party made a demand on the offender for the delivery or return of
such money, goods or other personal property.12

According to the theory and proof of the Prosecution, petitioner misappropriated or converted the
sums paid by her customers, and later falsified the duplicates of the receipts before turning such
duplicates to her employer to show that the customers had paid less than the amounts actually
reflected on the original receipts. Obviously, she committed the falsification in order to conceal
her misappropriation or conversion. Considering that the falsificationwas not an offense separate
and distinct from the estafacharged against her, the Prosecution could legitimately prove her acts
of falsification as its means of establishing her misappropriation or conversion as an essential
ingredient of the crime duly alleged in the information. In that manner, her right to be informed
of the nature and cause of the accusation against her was not infringed or denied to her.

We consider it inevitable to conclude that the information herein completely pleaded the estafa
defined and penalized under Article 315, paragraph 1 (b), Revised Penal Codewithin the context
of the substantive lawand the rules. Verily, there was no necessity for the information to allege
the acts of falsification by petitioner because falsification was not an element of the
estafacharged.

Not surprisingly,the RTC correctly dealt in its decision with petitioners concern thuswise:

In her Memorandum, it is the contention of [the] accused that [the] prosecutions evidence
utterly fails to prove the crime charged. According to the defense, the essence of Karen
Guivencans testimony is that the accused falsified the receipts issued to the customers served by
her by changing or altering the amounts in the duplicates of the receipts and therefore, her
testimony is immaterial and irrelevant as the charge is misappropriation under Art. 315,
paragraph (1b) of the Revised Penal Code and there is no allegation whatsoever of any
falsification or alteration of amounts in the [i]nformation under which the accused was arraigned
and pleaded NOT GUILTY. Accused, thus, maintains that the testimony of Karen Guivencan
should therefore not be considered at all as it tended to prove an offense not charged or included
in the [i]nformation and would violate [the] accuseds constitutional and statutory right to be
informed of the nature and cause of the accusation against her. The Court is not in accord with
such posture of the accused.

It would seem that the accused is of the idea that because the crime charged in the [i]nformation
is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents, the prosecution could not
prove falsification. Such argumentation is not correct. Since the information charges accused
only of misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the Court
holds that there is no necessity of alleging the falsification in the Information as it is not an
element of the crime charged.

Distinction should be made as to when the crimes of Estafa and Falsification will constitute as
one complex crime and when they are considered as two separate offenses. The complex crime
of Estafa Through Falsification of Documents is committed when one has to falsify certain
documents to be able to obtain money or goods from another person. In other words, the
falsification is a necessary means of committing estafa. However, if the falsification is
committed to conceal the misappropriation, two separate offenses of estafa and falsification are
committed. In the instant case, when accused collected payments from the customers, said
collection which was in her possession was at her disposal. The falsified or erroneous entries
which she made on the duplicate copies of the receipts were contrived to conceal some amount
of her collection which she did not remit to the company xxx.13

II

Testimonial and documentary evidence,being hearsay,


did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish the guilt
of the accused beyond reasonable doubt. In discharging this burden, the Prosecutions duty is to
prove each and every element of the crime charged in the information to warrant a finding of
guilt for that crime or for any other crime necessarily included therein.14 The Prosecution must
further prove the participation of the accused in the commission of the offense.15In doing all
these, the Prosecution must rely on the strength of its own evidence, and not anchor its success
upon the weakness of the evidence of the accused. The burden of proof placed on the
Prosecution arises from the presumption of innocence in favor of the accused that no less than
the Constitution has guaranteed.16Conversely, as to his innocence, the accused has no burden of
proof,17that he must then be acquitted and set free should the Prosecution not overcome the
presumption of innocence in his favor.In other words, the weakness of the defense put up by the
accused is inconsequential in the proceedings for as long as the Prosecution has not discharged
its burden of proof in establishing the commission of the crime charged and in identifying the
accused as the malefactor responsible for it.

Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of petitioner
for the estafa charged in the information?

To establish the elements of estafaearlier mentioned, the Prosecution presented the testimonies
of Go and Guivencan, and various documentsconsisting of: (a) the receipts allegedly issued by
petitioner to each of her customers upon their payment, (b) the ledgers listing the accounts
pertaining to each customer with the corresponding notations of the receipt numbers for each of
the payments, and (c) the confirmation sheets accomplished by Guivencan herself.18The ledgers
and receipts were marked and formally offered as Exhibits B to YY, and their derivatives,
inclusive.

On his part, Go essentially described for the trial court the various duties of petitioner as
Footluckers sales representative. On her part, Guivencan conceded having no personal
knowledge of the amounts actually received by petitioner from the customersor remitted by
petitioner to Footluckers.This means that persons other than Guivencan prepared Exhibits B to
YY and their derivatives, inclusive,and that Guivencan based her testimony on the entries found
in the receipts supposedly issued by petitioner and in the ledgers held by Footluckers
corresponding to each customer, as well as on the unsworn statements of some of the customers.
Accordingly, her being the only witness who testified on the entries effectively deprived the
RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries
as evidence of petitioners misappropriation or conversion through cross-examination by
petitioner. The denial of that opportunity rendered theentire proof of misappropriation or
conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt
or innocence of the accused.

To elucidate why the Prosecutions hearsay evidence was unreliable and untrustworthy, and thus
devoid of probative value, reference is made toSection 36 of Rule 130, Rules of Court, a rule that
states that a witness can testify only to those facts that she knows of her personal knowledge; that
is, which are derived from her own perception, except as otherwise provided in the Rules of
Court. The personal knowledge of a witness is a substantive prerequisite for accepting
testimonial evidence that establishes the truth of a disputed fact. A witness bereft ofpersonal
knowledge of the disputed fact cannot be called upon for that purpose because her testimony
derives its value not from the credit accorded to her as a witness presently testifying but from the
veracity and competency of the extrajudicial source of her information.

In case a witness is permitted to testify based on what she has heard another person say about the
facts in dispute, the person from whom the witness derived the information on the facts in
dispute is not in court and under oath to be examined and cross-examined. The weight of such
testimony thendepends not upon theveracity of the witness but upon the veracity of the other
person giving the information to the witness without oath. The information cannot be tested
because the declarant is not standing in court as a witness andcannot, therefore, be cross-
examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular,
to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any
obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion
that she was told so, and leaves the burden entirely upon the dead or absent author.19 Thus, the
rule against hearsay testimony rests mainly on the ground that there was no opportunity to cross-
examine the declarant.20 The testimony may have been given under oath and before a court of
justice, but if it is offered against a party who is afforded no opportunity to cross-examine the
witness, it is hearsay just the same.21

Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of
the truth of the fact asserted, the credit of the assertor becomes the basis of inference, and,
therefore, the assertion can be received as evidence only when made on the witness stand,
subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as
an assertion to prove the matter asserted but without reference to the truth of the matter asserted,
the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies
that he heard the accused say that the complainant was a thief, this testimony is admissible not to
prove that the complainant was really a thief, but merely to show that the accused uttered those
words.22 This kind of utterance ishearsay in character but is not legal hearsay.23The distinction is,
therefore, between (a) the fact that the statement was made, to which the hearsay rule does not
apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies.24

Section 36, Rule 130 of the Rules of Court is understandably not the only rule that explains why
testimony that is hearsay should be excluded from consideration. Excluding hearsay also aims to
preserve the right of the opposing party to cross-examine the originaldeclarant claiming to have a
direct knowledge of the transaction or occurrence.25If hearsay is allowed, the right stands to be
denied because the declarant is not in court.26It is then to be stressed that the right to cross-
examine the adverse partys witness,

being the only means of testing the credibility of witnesses and their testimonies, is essential to
the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a
dispute while also safeguardinga partys right to cross-examine her adversarys witness,the Rules
of Court offers two solutions. The firstsolution is to require that allthe witnesses in a judicial trial
or hearing be examined only in courtunder oath or affirmation. Section 1, Rule 132 of the Rules
of Court formalizes this solution,viz:

Section 1. Examination to be done in open court. - The examination of witnesses presented in a


trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally. (1a)

The secondsolution is to require that all witnesses besubject to the cross-examination by the
adverse party. Section 6, Rule 132 of the Rules of Courtensuresthis solutionthusly:
Section 6. Cross-examination; its purpose and extent. Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters stated in
the direct examination, or connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (8a)

Although the second solution traces its existence to a Constitutional precept relevant to criminal
cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees that: "In all
criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the witnesses face to face
xxx," the rule requiring the cross-examination by the adverse party equally applies to non-
criminal proceedings.

We thus stress that the rule excluding hearsay as evidence is based upon serious concerns about
the trustworthiness and reliability of hearsay evidence due to its not being given under oath or
solemn affirmation and due to its not being subjected to cross-examination by the opposing
counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant
or actor upon whose reliability the worth of the out-of-court statement depends.27

Based on the foregoing considerations, Guivencans testimony as well as Exhibits B to YY, and
their derivatives, inclusive, must be entirely rejected as proof of petitioners misappropriation or
conversion.

III

Lack of their proper authentication rendered


Exhibits B to YY and their derivatives
inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to YY,
and their derivatives, inclusive, despite their being private documents that were not duly
authenticated as required by Section 20, Rule 132 of the Rules of Court.

Section 19, Rule 132 of the Rules of Courtdistinguishes between a public document and a private
document for the purpose of their presentation in evidence, viz:

Section 19. Classes of documents. For the purpose of their presentation in evidence,
documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments, and
(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private.

The nature of documents as either public or private determines how the documents may be
presented as evidence in court. A public document, by virtue of its official or sovereign
character, or because it has been acknowledged before a notary public (except a notarial will) or
a competent public official with the formalities required by law, or because it is a public record
of a private writing authorized by law, is self-authenticating and requires no further
authentication in order to be presented as evidence in court.In contrast, a private document is any
other writing, deed, or instrument executed by a private person without the intervention of a
notary or other person legally authorized by which some disposition or agreement is proved or
set forth. Lacking the official or sovereign character of a public document, or the solemnities
prescribed by law, a private document requires authentication in the manner allowed by law or
the Rules of Court before its acceptance as evidence in court. The requirement of authentication
of a private document is excused only in four instances, specifically: (a) when the document is an
ancient one within the context of Section 21,28 Rule 132 of the Rules of Court; (b) when the
genuineness and authenticity of an actionable document have not been specifically denied under
oath by the adverse party;29(c) when thegenuineness and authenticity of the document

have been admitted;30 or (d) when the document is not being offered as genuine.31

There is no question that Exhibits B to YY and their derivatives were private documents because
private individuals executed or generated them for private or business purposes or uses.
Considering that none of the exhibits came under any of the four exceptions, they could not be
presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to
their authentication in the manner provided in Section20 of Rule 132 of the Rules of Court,viz:

Section 20. Proof of private documents. Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

The Prosecutionattempted to have Go authenticate the signature of petitioner in various receipts,


to wit:

ATTY. ABIERA:

Q. Now, these receipts which you mentioned which do not tally with the original receipts, do you
have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.

Q. But when asked to present those receipts before this Honorable Court, can you assure this

(Next Page)

ATTY ABIERA (continuing):

Honorable Court that you will be able to present those receipts?

A. Yes.

Q. You are also familiar with the signature of the accused in this case, Anna Lerima Patula?

A. Yes.

Q. Why are you familiar with the signature of the accused in this case?

A. I used to see her signatures in the payroll and in the receipts also.

Q. Okay, I have here a machine copy of a receipt which we would present this,or offer the
same as soon as the original receipts can be presented, but for purposes only of your
testimony, Im going to point to you a certain signature over this receipt number FLDT96
20441, a receipt from Cirila Askin, kindly go over the signature and tell the Honorable Court
whether you are familiar with the signature?

A. Yes, that is her signature.

INTERPRETER:

Witness is pointing to a signature above the printed word "collector".

(Next Page)

ATTY. ABIERA:

Q. Is this the only receipt wherein the name, the signature rather, of the accused in this case
appears?

A. That is not the only one, there are many receipts.

ATTY. ABIERA:

In order to save time, Your Honor, we will just be presenting the original receipts Your
Honor, because its quite voluminous, so we will just forego with the testimony of the witness
but we will just present the same using the testimony of another witness, for purposes of
identifying the signature of the accused. We will request that this signature which has been
identified to by the witness in this case be marked, Your Honor, with the reservation to present
the original copy and present the same to offer as our exhibits but for the meantime, this is only
for the purposes of recording, Your Honor, which we request the same, the receipt which has just
been identified awhile ago be marked as our Exhibit "A" You Honor.

COURT:

Mark the receipt as Exhibit "A".

ATTY. ABIERA:

And the signature be bracketed and be marked as Exhibit "A-1".

(Next Page)

COURT:

Bracket the signature &mark it as Exh. "A-1". What is the number of that receipt?

ATTY. ABIERA:

Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila Askin.32

xxx

As the excerpts indicate, Gos attempt at authentication of the signature of petitioner on the
receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while
the purported signature of petitioner thereon was marked as Exhibit A-1) immediately fizzled out
after the Prosecution admitted that the document was a meremachinecopy, not the original.
Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a
later date the originalsof the receipt with serial number FLDT96 No. 20441 and other receipts.
But that promise was not even true, because almost in the same breath the Prosecution offered to
authenticate the signature of petitioner on the receiptsthrougha different witness (though then
still unnamed). As matters turned out in the end, the effort to have Go authenticate both
themachinecopy of the receiptwith serial number FLDT96 No. 20441 and the signature of
petitioner on that receipt was wasteful because the machine copy was inexplicablyforgotten and
was no longer evenincluded in the Prosecutions Offer of Documentary Evidence.

It is true that the original of the receipt bearing serial number FLDT96 No. 20441was
subsequentlypresented as Exhibit Bthrough Guivencan. However,the Prosecution did not
establishthat the signature appearing on Exhibit B was the same signature that Go had
earliersought to identify to be the signature of petitioner (Exhibit A-1) on the machine copy
(Exhibit A). This is borne out by the fact that the Prosecution abandoned Exhibit A as the
marking nomenclature for the machine copyof the receipt bearing serial number FLDT96 No.
20441 for all intents and purposes of this case, and used the same nomenclature to referinstead
toan entirely differentdocument entitled "List of Customers covered by ANA LERIMA
PATULA w/difference in Records as per Audit duly verified March 16-20, 1997."

In her case, Guivencans identification of petitioners signature on two receipts based alone on
the fact that the signatures contained the legible family name of Patula was ineffectual, and
exposed yet another deep flaw infecting the documentary evidence against petitioner.
Apparently, Guivencan could not honestly identify petitioners signature on the receipts either
because she lacked familiarity with such signature, or because she had not seen petitioner affix
her signature on the receipts, as the following excerpts from her testimony bear out:

ATTY. ZERNA to witness:

Q. There are two (2) receipts attached here in the confirmation sheet, will you go over these Miss
witness?

A. This was the last payment which is fully paid by the customer. The other receipt is the one
showing her payment prior to the last payment.

COURT:

Q. Where did you get those two (2) receipts?

A. From the customer.

Q. And who issued those receipts?

A. The saleswoman, Miss Patula.

ATTY. ZERNA:

We pray, Your Honor, that this receipt identified be marked as Exhibit "B-3", receipt number
20441.

(Next Page)

COURT:

Mark it.

ATTY. ZERNA:

The signature of the collector be marked as

Q. By the way, there is a signature above the name of the collector, are your familiar with
that signature? (shown to witness)
A. Yes.

Q. Whose signature is that?

A. Miss Patula.

Q. How do you know?

A. It can be recognized because of the word Patula.

Q. Are you familiar with her signature?

A. Yes.

ATTY. ZERNA:

We pray that the signature be bracketed and marked as Exhibit "B-3-a"

COURT:

Mark it.

ATTY. ZERNA:

The other receipt number 20045 be marked as Exhibit "B-4" and the signature as Exhibit "B-4-
a".

COURT:

Mark it.33

xxx

ATTY. ZERNA:

Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one Divina Cadilig. Will
you please identify this receipt if this is the receipt of your office?

A.Yes.

Q.There is a signature over the portion for the collector. Whose signature is this?

A.Ms. Patula.

Q.How do you know that this is her signature?


A.Because we can read the Patula.34

We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amountspetitioner hadallegedly
received from the customers and the amounts she had actually remitted to Footluckers.
Guivencanexclusively relied on the entries of the unauthenticated ledgersto support her audit
report on petitioners supposed misappropriation or conversion, revealing her lack of
independent knowledge of the veracity of the entries, as the following excerpts of her testimony
show:

ATTY. ZERNA to witness:

Q. What is your basis of saying that your office records showed that this Cecilia Askin has
an account of P10,791.75?

ATTY. DIEZ:

The question answers itself, You Honor, what is the basis, office record.

COURT:

Let the witness answer.

WITNESS:

A. I made the basis on our ledger in the office. I just copied that and showed it to the
customers for confirmation.

ATTY. ZERNA to witness:

Q. What about the receipts?

COURT:

Make a follow-up question and what was the result when you copied that amount in the ledger
and you had it confirmed by the customers, what was the result when you had it confirmed by
the customers?

WITNESS:

A. She has no more balance but in our office she has still a balance of P10,971.75.

ATTY. ZERNA to witness:

Q. Do you have a-whats the basis of saying that the balance of this customer is still P10,971.75
(Next Page)

ATTY. ZERNA (continuing):

[i]n your office?

COURT:

That was already answered paero, the office has a ledger.

Q. Now, did you bring the ledger with you?

A. No, Maam.35

(Continuation of the Direct Examination of


Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness:

Q. Okay, You said there are discrepancies between the original and the duplicate, will you
please enlighten the Honorable Court on that discrepancy which you said?

A. Like in this case of Cirila Askin, she has already fully paid. Her ledger shows a zero
balance she has fully paid while in the original

(Next page)

WITNESS (continuing):

[r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos and Seventy-
five Centavos (10,791.75).

COURT:

Q. What about the duplicate receipt, how much is indicated there?

A. The customer has no duplicate copy because it was already forwarded to the Manila Office.

Q. What then is your basis in the entries in the ledger showing that it has already a zero balance?

A. This is the copy of the customer while in the office, in the original receipt she has still a
balance.

xxx

ATTY. ZERNA:
The confirmation sheet ---

COURT:

The confirmation sheet was the one you referred to as the receipt in your earlier testimony? Is
that what you referred to as the receipts, the original receipts?

A. This is what I copied from the ledger.

Q. So where was that(sic) original receipt which you said showed that that particular customer
still has a balance of Ten Thousand something?

A. The receipt is no longer here.

Q. You mean the entry of that receipt was already entered in the ledger?

A. Yes.36

In the face of the palpable flaws infecting the Prosecutions evidence, it should come as no
surprise that petitioners counsel interposed timely objections. Yet, the RTC mysteriously
overruled the objections and allowedthe Prosecutionto present the unauthenticated ledgers, as
follows:

(Continuation of the Direct Examination of


Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA:

CONTINUATION OF DIRECT-EXAMINATION

Q Ms. Witness, last time around you were showing us several ledgers. Where is it now?

A It is here.

Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her account in
your office?

ATTY. DIEZ:

Your Honor please before the witness will proceed to answer the question, let me interpose
our objection on the ground that this ledger has not been duly identified to by the person
who made the same. This witness will be testifying on hearsay matters because the
supposed ledger was not identified to by the person who made the same.

COURT:
Those ledgers were already presented in the last hearing. I think they were already duly
identified by this witness. As a matter of fact, it was she who brought them to court

(Next Page)

COURT (cont.):

because these were the ledgers on file in their office.

ATTY. DIEZ

That is correct, Your Honor, but the person who made the entries is not this witness, Your
Honor. How do we know that the entries there is (sic) correct on the receipts submitted to
their office.

COURT:

Precisely, she brought along the receipts also to support that. Let the witness answer.

WITNESS:

A Its the office clerk in-charge.

COURT:

The one who prepared the ledger is the office clerk.

ATTY. ZERNA:

She is an auditor, Your Honor. She has been qualified and she is the auditor of Footluckers.

COURT:

I think, I remember in the last setting also, she testified where those entries were taken. So, you
answer the query of counsel.

xxx

ATTY. DIEZ:

Your Honor please, to avoid delay, may I interpose a continuing objection to the questions
profounded(sic) on those ledgers on the ground that, as I have said, it is hearsay.

COURT:

Okey(sic). Let the continuing objection be noted.


Q (To Witness) The clerk who allegedly was the one who prepared the entries on those ledgers,
is she still connected with Footluckers?

A She is no longer connected now, Your Honor,

COURT:

Alright proceed.

(Next Page)

ATTY. ZERNA:

Your Honor, these are entries in the normal course of business. So, exempt from the
hearsay rule.

COURT:

Okey(sic), proceed.37

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed presentation was
avoidable simply by the RTC adhering to the instructions of the rules earlier quoted, as well as
withSection 22 of Rule 132 of the Rules of Court,which contains instructions on how to prove
the genuineness of a handwriting in a judicial proceeding, as follows:

Section 22. How genuineness of handwriting proved. The handwriting of a person may be
proved by any witness who believes it to be the handwriting of such person because he has seen
the person write, or has seen writing purporting to be his upon which the witness has acted
or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the witness or the
court, with writings admitted or treated as genuine by the party against whom the evidence is
offered, or proved to be genuine to the satisfaction of the judge. (Emphases supplied)

If it is already clear that Go and Guivencan had not themselves seen the execution or signing of
the documents,the Prosecution surely did not authenticate Exhibits B to YY and their derivatives
conformably with the aforequoted rules. Hence, Exhibits B to YY, and their derivatives,
inclusive, were inescapably bereft of probative value as evidence. That was the onlyfair and just
result, as the Court held in Malayan Insurance Co., Inc. v. Philippine Nails and Wires
Corporation:38

On the first issue, petitioner Malayan Insurance Co., Inc., contends that Jeanne Kings
testimony was hearsay because she had no personal knowledge of the execution of the
documents supporting respondents cause of action, such as the sales contract, invoice,
packing list, bill of lading, SGS Report, and the Marine Cargo Policy. Petitioner avers that even
though King was personally assigned to handle and monitor the importation of Philippine Nails
and Wires Corporation, herein respondent, this cannot be equated with personal knowledge of
the facts which gave rise to respondents cause of action. Further, petitioner asserts, even though
she personally prepared the summary of weight of steel billets received by respondent, she did
not have personal knowledge of the weight of steel billets actually shipped and delivered.

At the outset, we must stress that respondents cause of action is founded on breach of insurance
contract covering cargo consisting of imported steel billets. To hold petitioner liable, respondent
has to prove, first, its importation of 10,053.400 metric tons of steel billets valued at
P67,156,300.00, and second, the actual steel billets delivered to and received by the importer,
namely the respondent. Witness Jeanne King, who was assigned to handle respondents
importations, including their insurance coverage, has personal knowledge of the volume of steel
billets being imported, and therefore competent to testify thereon. Her testimony is not hearsay,
as this doctrine is defined in Section 36, Rule 130 of the Rules of Court.However, she is not
qualified to testify on the shortage in the delivery of the imported steel billets. She did not
have personal knowledge of the actual steel billets received. Even though she prepared the
summary of the received steel billets, she based the summary only on the receipts prepared
by other persons. Her testimony on steel billets received was hearsay. It has no probative
value even if not objected to at the trial.

On the second issue, petitioner avers that King failed to properly authenticate respondents
documentary evidence. Under Section 20, Rule 132, Rules of Court, before a private
document is admitted in evidence, it must be authenticated either by the person who
executed it, the person before whom its execution was acknowledged, any person who was
present and saw it executed, or who after its execution, saw it and recognized the
signatures, or the person to whom the parties to the instruments had previously confessed
execution thereof. In this case, respondent admits that King was none of the aforementioned
persons. She merely made the summary of the weight of steel billets based on the
unauthenticated bill of lading and the SGS report. Thus, the summary of steel billets
actually received had no proven real basis, and Kings testimony on this point could not be
taken at face value.

xxx Under the rules on evidence, documents are either public or private. Private documents are
those that do not fall under any of the enumerations in Section 19, Rule 132 of the Rules of
Court.Section 20of the same law, in turn, provides that before any private document is received
in evidence, its due execution and authenticity must be proved either by anyone who saw the
document executed or written, or by evidence of the genuineness of the signature or handwriting
of the maker. Here, respondents documentary exhibits are private documents. They are not
among those enumerated in Section 19, thus, their due execution and authenticity need to
be proved before they can be admitted in evidence.With the exception concerning the
summary of the weight of the steel billets imported, respondent presented no supporting
evidence concerning their authenticity. Consequently, they cannot be utilized to prove less
of the insured cargo and/or the short delivery of the imported steel billets. In sum, we find
no sufficient competent evidence to prove petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner decided not to subject
Guivencan to cross-examination, and did not tender her contrary evidencewas inconsequential.
Although the trial court had overruled the seasonable objections to Guivencans testimony
bypetitioners counsel due to the hearsay character, it could not be denied thathearsay evidence,
whether objected to or not, had no probative value.39Verily, the flaws of the Prosecutions
evidence were fundamental and substantive, not merely technical and procedural, and were
defects that the adverse partys waiver of her cross-examination or failure to rebutcould not set
right or cure. Nor did the trial courts overruling of petitioners objections imbue the flawed
evidence with any virtue and value.

Curiously, the RTC excepted the entries in the ledgers from the application of the hearsay rule by
also terselystating that the ledgers "were prepared in the regular course of business."40Seemingly,
the RTC applied Section 43, Rule 130 of the Rules of Court, to wit:

Section 43. Entries in the course of business. Entries made at, or near the time of the
transactions to which they refer, by a person deceased, or unable to testify, who was in a position
to know the facts therein stated, may be received as prima facie evidence, if such person made
the entries in his professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty.

This was another grave error of the RTC.The terse yet sweeping mannerof justifying the
application of Section 43 was unacceptable due to the need to show the concurrence of the
several requisites before entries in the course of business could be excepted from the hearsay
rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;

(b) The entries were made at or near the time of the transactions to which they refer;

(c) The entrant was in a position to know the facts stated in the entries;

(d) The entries were made in his professional capacity or in the performance of a duty,
whether legal, contractual, moral, or religious;

(e) The entries were made in the ordinary or regular course of business or duty.41

The Court has to acquit petitioner for failure of the State to establish her guilt beyond reasonable
doubt. The Court reiterates that in the trial of every criminal case, a judge must rigidly test the
States evidence of guilt in order to ensure that such evidence adhered to the basic rules of
admissibility before pronouncing an accused guilty of the crime charged upon such evidence.
The failure of the judge to do so herein nullified the guarantee of due of process of law in favor
of the accused, who had no obligation to prove her innocence. Heracquittal should follow.

IV

No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares that the disposition
by the RTC ordering petitioner to indemnify Footluckers in the amount of P131,286.92 with
interest of 12% per annum until fully paid was not yet shown to be factually founded. Yet, she
cannot now be absolved of civil liability on that basis. Heracquittal has to bedeclared as without
prejudice to the filing of a civil action against her for the recovery of any amount that she may
still owe to Footluckers.1wphi1

WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision convicting ANNA


LERIMA PATULAof estafa as charged, and ACQUITS her for failure of the Prosecution to
prove her guilt beyond reasonable doubt, without prejudice to a civil action brought against her
for

the recoveryof any amount still owing in favor of Footluckers Chain of Stores, Inc.

No pronouncement on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

i. Dying Declaration: People of the Philippines vs Gatarin

THIRD DIVISION

G.R. No. 198022 April 7, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
SONNY GATARIN y CABALLERO @ "JAY-R" and EDUARDO QUISAYAS, Accused,

EDUARDO QUISAYAS, Accused-Appellant.

DECISION

PERALTA, J.:

Assailed in this appeal is the Court of Appeals (CA) Decision1 dated February 23, 2011 in CA-
G.R. CR H.C. No. 03593 affirming the Regional Trial Court (RTC)2 Decision3 dated June 20,
2008 in Criminal Case No. 13838 convicting appellant Eduardo Quisayas of Robbery with
Homicide committed against the victim Januario Castillo y Masangcay (Januario).

The facts of the case follow:

Appellant and accused Sonny Gatarin y Caballero were charged in an Information4 with
Robbery with Homicide committed as follows:
That on or about the 3rd day of November, 2004, at about 8:00 oclock (sic) in the evening, at
Barangay Poblacion, Municipality of Mabini, Province of Batangas, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon,
conspiring and confederating together, acting in common accord and mutually helping each
other, with intent to gain, without the knowledge and consent of the owner thereof and with
violence against or intimidation of person, did then and there willfully, unlawfully and
feloniously take, rob, and carry away cash money amounting to Twenty Thousand Pesos
(P20,000.00), Philippine Currency, belonging to Januario Castillo y Masangcay alias "Ka
Maning," to the damage and prejudice of the latter in the aforementioned amount and that on the
occasion and by reason of said robbery, the said accused with intent to kill and taking advantage
of their superior strength, did then and there willfully, unlawfully and feloniously attack, assault
and stab with the said weapon Januario Castillo y Masangcay alias "Ka Maning," thereby
inflicting upon the latter the stab wounds to [the] anterior chest and right shoulder and right
axilla, which directly caused his death.

Contrary to law.5

Appellant was arrested, while his co-accused remained at-large. When arraigned, he pleaded
"Not Guilty." Trial on the merits thereafter ensued.

The prosecution presented the testimonies of the following witnesses: (1) Maria Castillo, the
victims wife; (2) Howel Umali (Umali), who allegedly saw how the accused mauled the victim;
(3) SPO3 Gregorio G. Mendoza (SPO3 Mendoza) of the Mabini Police Station, who saw the
victim lying on the floor and the accused running away from the crime scene, and testified on the
dying declaration of Januario; (4) Dr. Catalino Ike A. Rasa Jr. (Dr. Rasa), who attended to the
victim when he was brought to the hospital; and (5) PO1 Rogelio Dizon Coronel (PO1 Coronel),
who saw the accused running fast near the crime scene and who, likewise, testified on Januarios
ante mortem statement.

From the testimonies of the above-named witnesses, the prosecution established the following
facts:

On November 3, 2004, at 8 oclock in the evening, Umali was riding a bicycle on his way home
when he saw Januario being mauled by two persons opposite Doms Studio in Poblacion,
Mabini, Batangas. Upon seeing the incident, he stayed in front of the church until such time that
the accused ran away and were chased by policemen who alighted from the police patrol
vehicle.6

On the same night, SPO3 Mendoza and PO1 Coronel were on board their patrol vehicle
performing their routine patrol duty when they met two men, later identified as the accused, who
were running at a fast speed. When asked why they were running, the accused did not answer
prompting the policemen to chase them. The policemen, however, were unsuccessful in catching
them and when it became evident that they could no longer find them, they continued patrolling
the area. There they saw Januario lying on the street in front of Doms studio. As he was severely
injured, the policemen immediately boarded Januario to the patrol vehicle and brought him to the
Zigzag Hospital. While inside the vehicle, SPO3 Mendoza asked Januario who hurt him. He
answered that it was "Jay-R and his uncle" who stabbed him. The uncle turned out to be the
appellant herein, while Jay-R is his co-accused who remains at-large.7

At the Zigzag Hospital, Januario was attended to by Dr. Rasa who found him in critical
condition. Three fatal wounds caused by a bladed weapon were found in Januarios body which
eventually caused his death.8

Maria Castillo, for her part, testified on how she learned of what happened to her husband, the
victim herein, the amount allegedly stolen from her husband, as well as on the expenses and loss
incurred by reason of Januarios death. She, further, quantified the sorrow and anxiety the family
suffered by reason of such death.9

In his defense, appellant denied the accusation against him. He claimed that he is from the
Province of Samar but has been residing in Cupang, Muntinlupa City since 1987. He denied
knowing, much more residing in, Mabini, Batangas, as he only heard about the province from his
employer who happens to be a resident therein. He claimed that he did not know Januario and
that he was, in fact, working in Muntinlupa City on the date and time the crime was allegedly
committed.10

The prosecutions rebuttal witness Mr. Bienvenido Caponpon, however, belied appellants claim
and insisted that appellant was renting a house in Mabini, Batangas and that he was seen there
until the day the crime was committed.11

On June 20, 2008, the RTC rendered a Decision against the appellant, the dispositive portion of
which reads:

WHEREFORE, the People having proven the guilt of accused Eduardo Quisayas beyond
reasonable doubt, he is hereby declared "GUILTY" of the offense as charged. Accordingly, he is
hereby sentenced to a prison term of Reclusion Perpetua.

Further, he is hereby ordered to pay herein offended party of the following:

(a) civil indemnity in the amount of Php50,000.00

(b) actual damages in the amount of Php20,000.00, plus Php35,310.00 (funeral and
hospital expenses), and

(c) moral damages in the amount of Php100,000.00

SO ORDERED.12

The trial court gave credence to the testimony of Maria Castillo not only as to the fact of taking
money from Januario but also the amount taken.13 The fact of death was, likewise, found by the
court to have been adequately proven by the testimony of Dr. Rasa.14 Though there was no
evidence whether the unlawful taking preceded the killing of Januario, the court held that there
was direct and intimate connection between the two acts.15
As to the identity of the perpetrators, the court considered the victims response to SPO3
Mendozas question as to who committed the crime against him as part of the res gestae, which
is an exception to the hearsay rule.16 As to appellants defense of alibi, the court gave more
weight to the prosecutions rebuttal evidence that indeed the former was an actual resident of
Mabini, Batangas.17

On appeal, the CA affirmed the RTC decision. Contrary, however, to the RTCs conclusion, the
appellate court considered Januarios statement to SPO3 Mendoza, that the accused were the
ones who stabbed him and took his wallet, not only as part of res gestae but also as a dying
declaration.18

Hence, the appeal before the Court.

We find appellant guilty beyond reasonable doubt not of robbery with homicide but of murder.

The trial courts factual findings, including its assessment of the credibility of the witnesses, the
probative weight of their testimonies, and the conclusions drawn from the factual findings are
accorded great respect and even conclusive effect. We, nevertheless, fully scrutinize the records,
since the penalty of reclusion perpetua that the CA imposed on appellant demands no less than
this kind of careful and deliberate consideration.19

To sustain a conviction for robbery with homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to another; (2) with intent to gain; (3)
with the use of violence or intimidation against a person; and (4) on the occasion or by reason of
the robbery, the crime of homicide, as used in the generic sense, was committed.20

First, in order to sustain a conviction for the crime of robbery with homicide, it is necessary that
the robbery itself be proven as conclusively as any other essential element of the crime.21 In
order for the crime of robbery with homicide to exist, it must be established that a robbery has
actually taken place and that, as a consequence or on the occasion of robbery, a homicide be
committed.22

For there to be robbery, there must be taking of personal property belonging to another, with
intent to gain, by means of violence against or intimidation of any person or by using force upon
on things.23 Both the RTC and the CA concluded that robbery was committed based on the
testimonies of Maria Castillo, SPO3 Mendoza, and PO1 Coronel. A closer look at the
testimonies of these witnesses, however, failed to convince us that indeed robbery took place.

Maria Castillos testimony was offered by the prosecution to prove that her husband, the victim
herein, was a victim of robbery with homicide and that he is a businessman, and that she suffered
damages by reason of such death. The pertinent portion of her direct testimony is quoted below
for a closer scrutiny:

ATTY. MASANGYA:

Q The victim in this case Januario Castillo, how are you related to him?
WITNESS:

A My husband, sir.

Q On November 3, 2004, do you remember of any unusual incident that has occurred?

A Yes, sir.

Q And what is that event?

A At around 8:30 oclock in the evening of November 3, 2004 while I was at home, policemen
arrived and informed me that my husband was wounded, sir.

Q Did these police officers inform you the location (sic) of where your husband was located?

A According to the policemen, my husband was at Zigzag Hospital, sir.

Q Did you go to Zigzag Hospital, Madam Witness?

A Yes, sir.

Q What happened, Madam Witness, when you arrived at the hospital?

A I was informed by the nurse there that my husband was already dead.

ATTY. MASANGYA:

Q Were you informed of the cause of the death of your husband?

WITNESS:

A According to them my husband was wounded, many wounds and he was robbed, sir.

Q Madam Witness, were you able to know who are the persons responsible for the death of your
husband?

ATTY. EBORA:

We will object. That will be misleading.

COURT:

If she is aware.

ATTY. EBORA:
We submit.

COURT:

You ask her if she is aware who the perpetrators are.

ATTY. MASANGYA:

Q Madam Witness, were you informed who are the perpetrators of the crime on your husband?

WITNESS:

A Not yet, sir. It was not told to me by the policemen because the policemen were in a hurry.

ATTY. MASANGYA:

Q After the policemen went to your house, was there [any] person who informed you who were
the perpetrators of the crime?

A Yes, sir. My niece.

Q And who is that niece of yours, Madam Witness?

A Josephine Borbon, sir.

Q Did Miss Borbon tell you about the identity of the perpetrators of the crime, Madam Witness?

A Yes, sir.

Q And who are the persons did Miss Borbon mention?

A My former helper Sonny Gatarin and his uncle Eduardo Quisayas, sir.

Q You were told that your husband was robbed, how much was taken from your husband,
Madam Witness?

A P20,000.00.

Q And can you tell, Madam Witness, why is your husband carrying that amount of money at the
time of his death?

A Yes, sir.

WITNESS:

A Those were the earnings for that day for he delivered merchandise and groceries, sir.
ATTY. MASANGYA:

Q Do you know, Madam Witness, if your husband is engaged in any business?

A Yes, sir.

Q And what is your proof in saying your husband is engaged in business?

A Our business was we delivered bottled goods and groceries, sir.

Q The business wherein your husband is engaged has an existing license with the appropriate
local government?

A Yes, sir.

Q If a copy will be shown to you, will you be able to identify the same?

A Yes, sir.

Q I am showing to you [a] certified copy of [the] Mayors permit previously marked as Exhibit
"H"?

A This is it, sir.

Q If you know, Madam Witness, how much is your husband earning in his sari-sari or grocery
business?

WITNESS:

A Yes, sir.

ATTY. MASANGYA:

Q How much is he earning at the time?

A He earns P40,000.00.

Q In a month or year?

A P40,000.00 a month, sir.

Q How do you feel or confront the situation that your husband is already dead?

A We felt deep sorrow together with my three (3) children, sir. (Witness is crying)

x x x x24
From the above testimony, it can be inferred that Maria Castillo obviously was not at the scene
of the crime on that fateful night as she was only informed that the incident took place and that
Januario was brought to the Zigzag Hospital. It, likewise, appears that she had no personal
knowledge that Januario was robbed. While she claimed that P20,000.00 was illegally taken
from him, no evidence was presented to show that Januario indeed had that amount at that time
and that the same was in his possession. As Maria Castillo claimed that the said amount was
allegedly received from their clients in their grocery business, said fact could have been proven
by receipts or testimonies of said clients. The prosecutions failure to present such evidence
creates doubt as to the existence of the money.

The trial and appellate courts likewise relied on the testimony of SPO3 Mendoza and PO1
Coronel on the statement of Januario after the commission of the crime. While both policemen
testified as to the dying declaration of Januario pertaining to the cause and circumstances
surrounding his death, only PO1 Coronel testified during his direct examination that when asked
who stabbed him, Januario replied that it was "Jay-Ar and his uncle who stabbed him and took
his wallet."25 In response to the Presiding Judges clarificatory question, however, PO1 Coronel
admitted that when he asked Januario who stabbed him, he replied that it was Jay-Ar and his
uncle. After which, no further question was asked.26 On the other hand, nowhere in SPO3
Mendozas testimony did he talk about the alleged taking of wallet. The pertinent portions of
their testimonies read:

Direct Examination of PO1 Coronel:

xxxx

Q: What did you do next after boarding him inside your vehicle?

A We brought him at the Zigzag Hospital and we asked him who stabbed him.

Q What was his reply Mr. Witness?

A He told us that Jay-ar and his uncle stabbed him and took his wallet.

x x x x27

PO1 Coronels Answers to the questions propounded by the Presiding Judge:

THE COURT:

Alright, the Court will ask.

Q When did you talk with the victim?

A When we were inside the patrol car, your Honor.

Q What exactly did you ask from the victim?


A I asked him who stabbed him, your Honor.

Q Did you tell the victim his condition?

A No, your Honor.

Q You just asked the victim who stabbed him?

A Yes, your Honor.

Q What was the answer of the victim?

A That he was stabbed by Jay-ar and his uncle, your Honor.

Q And no other question did you ask him?

A None, your Honor.

x x x x28

Direct Testimony of SPO3 Mendoza:

xxxx

Q And when you saw Januario Castillo lying on the street, what did you do?

A We lifted him and boarded him in our vehicle then we brought him to the hospital.

Q While you were travelling, were you able to talk to the victim Januario Castillo?

A Yes, sir.

Q What was your conversation all about?

A I asked Ka Maning Castillo as to who stabbed him and he answered Jay-R and his uncle.

x x x x29

It is, therefore, clear from the foregoing that the evidence presented to prove the robbery aspect
of the special complex crime of robbery with homicide, does not show that robbery actually took
place. The prosecution did not convincingly establish the corpus delicti of the crime of robbery.

Corpus delicti has been defined as the body or substance of the crime and, in its primary sense,
refers to the fact that a crime has actually been committed. As applied to a particular offense, it
means the actual commission by someone of the particular crime charged.30 In this case, the
element of taking, as well as the existence of the money alleged to have been lost and stolen by
appellant, was not adequately established.31 We find no sufficient evidence to show either the
amount of money stolen, or if any amount was in fact stolen from Januario. Even if we consider
Januarios dying declaration, the same pertains only to the stabbing incident and not to the
alleged robbery.

Moreover, assuming that robbery was indeed committed, the prosecution must establish with
certitude that the killing was a mere incident to the robbery, the latter being the perpetrators
main purpose and objective. It is not enough to suppose that the purpose of the author of the
homicide was to rob; a mere presumption of such fact is not sufficient.32 Stated in a different
manner, a conviction requires certitude that the robbery is the main purpose, and objective of the
malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the
taking of human life but the killing may occur before, during or after the robbery.33 What is
crucial for a conviction for the crime of robbery with homicide is for the prosecution to firmly
establish the offenders intent to take personal property before the killing, regardless of the time
when the homicide is actually carried out.34 In this case, there was no showing of the appellants
intention, determined by their acts prior to, contemporaneous with, and subsequent to the
commission of the crime, to commit robbery.35 No shred of evidence is on record that could
support the conclusion that appellants primary motive was to rob Januario and that he was able
to accomplish it.36 Mere speculation and probabilities cannot substitute for proof required in
establishing the guilt of an accused beyond reasonable doubt.37 Where the evidence does not
conclusively prove the robbery, the killing of Januario would be classified either as a simple
homicide or murder, depending upon the absence or presence of any qualifying circumstance,
and not the crime of robbery with homicide.38 To establish the fact that appellant and his co-
accused killed the victim by stabbing him with a bladed weapon, the prosecution presented
Umali as an eyewitness to the mauling incident. It was this same witness who identified the
perpetrators. The trial and appellate courts also relied on the statement of Januario as to the
circumstances of his death, testified to by PO1 Coronel and SPO3 Mendoza as dying declaration
and as part of res gestae.

A dying declaration, although generally inadmissible as evidence due to its hearsay character,
may nonetheless be admitted when the following requisites concur, namely: (a) the declaration
concerns the cause and the surrounding circumstances of the declarant's death; (b) it is made
when death appears to be imminent and the declarant is under a consciousness of impending
death; (c) the declarant would have been competent to testify had he or she survived; and (d) the
dying declaration is offered in a case in which the subject of inquiry involves the declarant's
death.39

In the case at bar, it appears that not all the requisites of a dying declaration are present. From the
records, no questions relative to the second requisite was propounded to Januario. It does not
appear that the declarant was under the consciousness of his impending death when he made the
statements. The rule is that, in order to make a dying declaration admissible, a fixed belief in
inevitable and imminent death must be entered by the declarant. It is the belief in impending
death and not the rapid succession of death in point of fact that renders a dying declaration
admissible. The test is whether the declarant has abandoned all hopes of survival and looked on
death as certainly impending.40 Thus, the utterances made by Januario could not be considered
as a dying declaration.
However, even if Januarios utterances could not be appreciated as a dying declaration, his
statements may still be appreciated as part of the res gestae. Res gestae refers to the
circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its
character and are so spontaneous and contemporaneous with the main fact as to exclude the idea
of deliberation and fabrication. The test of admissibility of evidence as a part of the res gestae is,
therefore, whether the act, declaration, or exclamation, is so interwoven or connected with the
principal fact or event that it characterizes as to be regarded as a part of the transaction itself, and
also whether it clearly negates any premeditation or purpose to manufacture testimony.41

The requisites for admissibility of a declaration as part of the res gestae concur herein. When
Januario gave the identity of the assailants to SPO3 Mendoza, he was referring to a startling
occurrence which is the stabbing by appellant and his co-accused. At that time, Januario and the
witness were in the vehicle that would bring him to the hospital, and thus, had no time to
contrive his identification of the assailant. His utterance about appellant and his co-accused
having stabbed him, in answer to the question of SPO3 Mendoza, was made in spontaneity and
only in reaction to the startling occurrence. Definitely, the statement is relevant because it
identified the accused as the authors of the crime. Verily, the killing of Januario, perpetrated by
appellant, is adequately proven by the prosecution.

From the evidence presented, we find that as alleged in the information, abuse of superior
strength attended the commission of the crime, and thus, qualifies the offense to murder. Abuse
of superior strength is considered whenever there is a notorious inequality of forces between the
victim and the aggressor, assessing a superiority of strength notoriously advantageous for the
aggressor which the latter selected or took advantage of in the commission of the crime.42

It is clear from the records of the case that Januario was then fifty-four (54) years old. Appellant,
on the other hand, was then forty (40) years old. Appellant committed the crime with his co-
accused, his nephew. Clearly, assailants are younger than the victim. These two accused were
seen by Umali as the persons who mauled Januario. Moreover, assailants were armed with a
bladed weapon, while Januario was unarmed. This same bladed weapon was used in repeatedly
stabbing Januario, who no longer showed any act of defense. Dr. Rasa, the medical doctor who
attended to Januario when he was brought to the hospital, also testified as to the nature and
extent of the injury sustained by Januario. He clearly stated that Januario sustained three fatal
injuries which caused his death. The pertinent portion of Dr. Rasas testimony reads:

ATTY. MASANGYA:

Q How many injuries were sustained by the victim, Mr. Witness?

A Three.

Q In what parts of the body was the victim injured?

A The victim sustained three injuries: one on the left side of the parasternal border the heart (sic)
and it penetrated, and then the second one was on the right side of the chest near the shoulder and
the third one was under the armpit also to the chest.
ATTY. MASANGYA:

Q Which of those injuries caused the death of the victim?

A All of them are fatal, because the one over the heart penetrated the heart and the aorta. The one
in the anterior chest near the right shoulder hit the blood vessels of the armpit and the wound
under the armpit apparently hit the lungs.

x x x x43

This same physician issued the Medical Certificate explaining the location of the stab wounds as
well as the cause of death of Januario, to wit:

Location of Stab Wounds:

1. Stab wound penetrating 2nd inter-costal space left para-sternal border, 6" deep
penetrating the heart chambers and aorta

2. Stab wound over the right anterior deltoid muscle, penetrating

3" into the right axilla space; injuring the axilla blood vessels.

3. Stab wound over the right axilla, penetrating to the right chest cavity.

CAUSES OF DEATH

Immediate Cause: Hypovolemic Shock

Antecedent Cause: Multiple stab wounds to the anterior chest, right

axilla, and right axilla penetrating the chest cavity.

x x x x44

From the testimony of the eyewitness and corroborated by the medical certificate of Dr. Rasa, it
can be inferred that indeed the qualifying circumstance of abuse of superior strength attended the
commission of the crime. To be sure, with two assailants younger than the victim, armed with a
bladed weapon and inflicting multiple mortal wounds on the victim, there is definitely abuse of
superior strength deliberately taken advantage of by appellant and his co-accused in order to
consummate the offense.

Now on the penalty. Article 248 of the Revised Penal Code provides:

ART. 248. Murder. Any person who, not falling within the provisions of article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua to death if
committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.

x x x x45

There being neither mitigating nor aggravating circumstances, appellant shall be meted the
penalty of reclusion perpetua.

Finally, the award of damages. In murder, the grant of civil indemnity which has been fixed by
jurisprudence at P50,000.00 requires no proof other than the fact of death as a result of the crime
and proof of the accuseds responsibility therefor. Moral damages, on the other hand, which in
this case is also P50,000.00 are awarded in view of the violent death of the victim.46 Moreover,
exemplary damages in the amount of P30,000.00 should likewise be given, considering that the
offense was attended by an aggravating circumstance whether ordinary, or qualifying as in this
case. As duly proven by Maria Castillo, actual damages representing the hospital and funeral
expenses, as evidenced by receipts in the amount of P35,300.00, be awarded. Finally, in addition
and in conformity with current policy, we also impose on all the monetary awards for damages
an interest at the legal rate of six percent (6%) from date of finality of this decision until full
payment.47

WHEREFORE, premises considered, we MODIFY the Court of Appeals Decision dated


February 23, 2011 in CA-G.R. CR H.C. No. 03593, affirming the Regional Trial Court Decision
dated June 20, 2008 in Criminal Case No. 13838, convicting appellant Eduardo Quisayas of
Robbery with Homicide. We find appellant guilty beyond reasonable doubt of the crime of
MURDER and is sentenced to suffer the penalty of reclusion perpetua.

We, likewise, ORDER appellant TO PAY the heirs of the victim Januario Castillo y Masangcay
the following: (1) P35,300.00 actual damages; (2) P50,000.00 civil indemnity; (3) P50,000.00
moral damages; (4) P30,000.00 exemplary damages; plus (5) six percent (6%) interest on all
damages awarded from the date of the finality of this decision until full payment.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

ii. Declaration against interest: People of the Philippines vs


Bernal

SECOND DIVISION

[G.R. No. 113685. June 19, 1997]


THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. THEODORE BERNAL, JOHN
DOE and PETER DOE, accused-appellants.

DECISION

ROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and
whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No.
26658-92 of the Regional Trial Court of Davao City, Branch 10, under an informationlxxxix[1]
dated July 13, 1992, which reads as follows:

That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of
this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring,
confederating and cooperating together and helping one another, and by means of force,
violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped
one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla,
this City and was brought, handcuffed and carried away using a PU then fled together with
Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against
his will.

CONTRARY TO LAW.

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The
prosecution presented four witnesses.xc[2] On the other hand, Theodore Bernal testified for his
defense.

The material facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and
Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join
them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch
his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was
Payat.xci[3] When he said yes, one of them suddenly pulled out a handgun while the other
handcuffed him and told him not to run because they were policemen and because he had an
atraso or a score to settle with them. They then hastily took him away. Racasa immediately went
to the house of Openda, Jr. and informed the latters mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to
establish that Openda, Jr. had an illicit affair with Bernals wife Naty and this was the motive
behind the formers kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police
on August 5, 1991, and hence, was never kidnapped.xcii[4]
On December 10, 1993, the court a quo rendered judgmentxciii[5] finding Bernal guilty beyond
reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido
Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion
perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her
mental anguish and moral suffering.xciv[6]

Bernal assails the lower court for giving weight and credence to the prosecution witnesses
allegedly illusory testimonies and for convicting him when his guilt was not proved beyond
reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This,
however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what
is important is to determine and prove the fact of seizure, and the subsequent disappearance of
the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can
easily avoid punishment by the simple expedient of disposing of their victims bodies.

Article 267 of the Revised Penal Code provides thus:

ART. 267. - Kidnapping and serious illegal detention. -

Any private individual who shall kidnap or detain another, or in any other manner deprive him of
his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

For the charge of kidnapping to prosper, the deprivation of the victims liberty, which is the
essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably
acted in conspiracy with the two other unknown individuals as shown by their concerted acts
evidentiary of a unity of thought and community of purpose.xcv[7] Proof of conspiracy is perhaps
most frequently made by evidence of a chain of circumstances only.xcvi[8] The circumstances
present in this case sufficiently indicate the participation of Bernal in the disappearance of
Openda, Jr.
The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his
two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a
childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at
about 11:00 a.m. with his two companions and overheard him dispatching one of them to
Tarsings Store to check if a certain person was still there. This person later turned out to be
Openda, Jr. He added that after the latters presence was confirmed, the three men left the billiard
hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernals
companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who
knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that
he and the victim were drinking at Tarsings Store on that fateful day when Bernal passed by and
had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came
to the store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was
handcuffed and taken away by the unidentified men.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in
January 1991, Openda, Jr. confided to him that he and Bernals wife Naty were having an affair.
One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He
advised Naty not to do it again because she (was) a married woman.xcvii[9] Undoubtedly, his wifes
infidelity was ample reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator.
Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred
that the accused was the malefactor, motive may be sufficient to support a conviction.xcviii[10]
Openda, Jr.s revelation to Enriquez regarding his illicit relationship with Bernals wife is
admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration was at the time
it was made so far contrary to declarants own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may be received in
evidence against himself or his successors-in-interest and against third persons.

With the deletion of the phrase pecuniary or moral interest from the present provision, it is safe
to assume that declaration against interest has been expanded to include all kinds of interest, that
is, pecuniary, proprietary, moral or even penal.xcix[11]

A statement may be admissible when it complies with the following requisites, to wit: (1) that
the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the
declarant; (3) that at the time he made said declaration the declarant was aware that the same was
contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed
such declaration to be true.c[12]

Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His
confession to Enriquez, definitely a declaration against his own interest, since his affair with
Naty Bernal was a crime, is admissible in evidenceci[13] because no sane person will be presumed
to tell a falsehood to his own detriment.cii[14]

In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that
the latter could not have seen the actual handcuffing because Tarsings Store could not be seen
from the billiard hall. Sagarinos testimony shows that after Bernal and two others left the billiard
hall, the latter came back with Openda, Jr., already handcuffed.

"Q The three of them together?

A Yes, sir.

Q And what about you, where did you stay?

A I just stayed in the billiard hall.

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda.ciii[15]

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested.
The lower court correctly rejected this argument by holding that:

But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or
Tarcing store. On the contrary, he says that he had not known who the person was that Bernal
referred to when he requested one of this two companions to go see if that person was still there
at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass
by the billiard hall already handcuffed, with the two unidentified companions of Bernal with
him, on their way out to the main road.civ[16]

If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have requested
his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy
pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-
examination, stated:

"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that
correct?
A Yes, sir, because I was still in the store.cv[17]

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him again?

A Quite a time, sir, because when they left, his two companions came back and proceeded
to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda,
fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

A He was with nobody, sir.

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir.cvi[18]

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be
irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility
that when Racasa saw Bernal with his son at the store, the latter could have already brought
home his son before proceeding alone to the billiard hall where he was seen by Sagarino.cvii[19]

Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive
for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five
policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino,
Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the
place and staying at the billiard hall and mahjong house. The policemen departed and went to the
places he mentioned.

"Q - Minutes later do you know what happened?

"A - They came back.

"Q - What did you do after they came back?

"A - I asked these police officers if they found these (sic) persons they were looking (for)?
"Q - What was their answer?

"A - They answered in the negative.

"Q - Since the answer is in the negative, what did you do?

"A - I asked the police officers why they were looking for these persons.(?)

"Q - What was the answer of the policemen?

"A - The police officer said that those people were wanted by them because accordingly (sic)
they were marijuana pushers.cviii[20]

Bernals position is that no abduction or kidnapping ever took place but that an arrest was made
by pursuing policemen. This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive
against Bernal. If the latters allegations were true, then Sagarino should have been arrested by
the police at the time he gave his testimony in court. No such arrest was, however, made.

The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino
sufficient to convict Bernal. The court said that Sagarinos forthright answers to the questions of
the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction
or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of
a credible witness, but must be credible in itself.cix[21] This Court once again finds occasion to
reiterate the established rule that the findings of fact of a trial court carry great weight and are
entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a
better position to decide the question of credibility of witnesses.cx[22]

We note that after a lapse of a considerable length of time, the victim has yet to resurface.
Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this
Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion
perpetua, as maximum. The maximum penalty must be determined in accordance with rules and
provisions of the Revised Penal Code. With respect to the minimum penalty, however , " it is left
entirely within the discretion of the court to fix it anywhere within the range of the penalty next
lower without reference to the periods in to which it may be subdivided."cxi[23] Consistent with
this ruling, this court imposes reclusion temporal, in its maximum period, as the minimum
penalty, to reclusion perpetua, as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed
decision dated November 18, 1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.


SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

iii. Declaration about pedigree: Tizon vs Court of Appeals

SECOND DIVISION

G.R. No. 121027 July 31, 1997

CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners,


vs.
COURT OF APPEALS and TEODORA DOMINGO, respondents.

REGALADO, J.:

The present appeal by certiorari seeks the reversal of the judgment rendered by respondent Court of Appeals on June 30, 1995 1
which affirmed the Order of December 3, 1992 issued by the Regional Trial Court of Quezon City,
Branch 98, granting herein private respondent's Demurrer to Plaintiff's Evidence filed in Civil Case
No. Q-88-1054 pending therein.

The present appellate review involves an action for reconveyance filed by herein petitioners against
herein private respondent before the Regional Trial Court of Quezon City, Branch 98, docketed as the
aforesaid Civil Case No. Q-88-1054, over a parcel of land with a house and apartment thereon
located at San Francisco del Monte, Quezon City and which was originally owned by the spouses
Martin Guerrero and Teodora Dezoller Guerrero. It appears that petitioners Corazon Tison and Rene
Dezoller are the niece and nephew, respectively, of the deceased Teodora Dezoller Guerrero who is
the sister of petitioner's father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on March 5,
1983 without any ascendant or descendant, and was survived only by her husband, Martin Guerrero,
and herein petitioners. Petitioners' father, Hermogenes, died on October 3, 1973, hence they seek to
inherit from Teodora Dezoller Guerrero by right of representation.

The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse, Martin,
executed on September 15, 1986 an Affidavit of Extrajudicial Settlement 2 adjudicating unto himself,
allegedly as sole heir, the land in dispute which is covered by Transfer Certificate of Title No. 66886,
as a consequence of which Transfer Certificate of Title No. 358074 was issued in the name of Martin
Guerrero. On January 2, 1988, Martin Guerrero sold the lot to herein private respondent Teodora
Domingo and thereafter, Transfer Certificate of Title No. 374012 was issued in the latter's name.

Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an action for
reconveyance on November 2, 1988, claiming that they are entitled to inherit one-half of the property
in question by right of representation.

At the pre-trial conference, the following issues were presented by both parties for resolution:

(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece of the late Teodora
Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of representation from the estate of the
late Teodora Dezoller;

(3) whether or not defendant (herein private respondent) must reconvey the reserved participation of
the plaintiffs to the estate of the late Teodora Dezoller under Section 4, Rule 74 of the Rules of Court
which was duly annotated on the title of the defendant;

(4) whether or not the plaintiffs are entitled to damages, moral and exemplary, plus attorney's fees for
the willful and malicious refusal of defendant to reconvey the participation of plaintiffs in the estate of
Teodora Dezoller, despite demands and knowing fully well that plaintiffs are the niece and nephew of
said deceased; and

(5) whether or not the subject property now in litigation can be considered as conjugal property of the
spouses Martin Guerrero and Teodora Dezoller Guerrero. 3

During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with the
following documentary evidence offered to prove petitioners' filiation to their father and their aunt, to
wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller; certificates of
destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death certificates of
Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live birth
of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton Sitjar attesting to the
parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of Juliana Cariaga and
Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller;
and the marriage certificate of Martin and Teodora Guerrero. 4 Petitioners thereafter rested their case
and submitted a written offer of these exhibits to which a Comment 5 was filed by herein private
respondent.

Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the ground that
petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in accordance
with Article 172 of the Family Code. It is further averred that the testimony of petitioner Corazon
Dezoller Tison regarding her relationship with her alleged father and aunt is self-serving,
uncorroborated and incompetent, and that it falls short of the quantum of proof required under Article
172 of the Family Code to establish filiation. Also, the certification issued by the Office of the Local
Civil Registrar of Himamaylan, Negros Occidental is merely proof of the alleged destruction of the
records referred to therein, and the joint affidavit executed by Pablo Verzosa and Meliton Sitjar
certifying to the date, place of birth and parentage of herein petitioners is inadmissible for being
hearsay since the affiants were never presented for cross-examination. 6

On December 3, 1992, the trial court issued an order granting the demurrer to evidence and
dismissing the complaint for reconveyance. 7

In upholding the dismissal, respondent Court of Appeals declared that the documentary evidence
presented by herein petitioners, such as the baptismal certificates, family picture, and joint affidavits
are all inadmissible and insufficient to prove and establish filiation. Hence, this appeal.

We find for petitioners.

The bone of contention in private respondent's demurrer to evidence is whether or not herein
petitioners failed to meet the quantum of proof required by Article 172 of the Family Code to establish
legitimacy and filiation. There are two points for consideration before us: first is the issue on
petitioner's legitimacy, and second is the question regarding their filiation with Teodora Dezoller
Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken separately and
independently of each other, are not per se sufficient proof of legitimacy nor even of pedigree. It is
important to note, however, that the rulings of both lower courts in the case are basically premised on
the erroneous assumption that, in the first place, the issue of legitimacy may be validly controverted in
an action for reconveyance, and, in the second place, that herein petitioners have the onus probandi
to prove their legitimacy and, corollarily, their filiation. We disagree on both counts.

It seems that both the court a quo and respondent appellate court have regrettably overlooked the
universally recognized presumption on legitimacy. There is no presumption of the law more firmly
established and founded on sounder morality and more convincing reason than the presumption that
children born in wedlock are legitimate. 8 And well settled is the rule that the issue of legitimacy
cannot be attacked collaterally.

The rationale for these rules has been explained in this wise:

The presumption of legitimacy in the Family Code . . . actually fixes a civil status for the child born in
wedlock, and that civil status cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper parties, and within the period
limited by law.

The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another
action for a different purpose. The necessity of an independent action directly impugning the
legitimacy is more clearly expressed in the Mexican Code (Article 335) which provides: "The contest
of the legitimacy of a child by the husband or his heirs must be made by proper complaint before the
competent court; any contest made in any other way is void." This principle applies under our Family
Code. Articles 170 and 171 of the code confirm this view, because they refer to "the action to impugn
the legitimacy." This action can be brought only by the husband or his heirs and within the periods
fixed in the present articles.

Upon the expiration of the periods provided in Article 170, the action to impugn the legitimacy of a
child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed,
and can no longer be questioned. The obvious intention of the law is to prevent the status of a child
born in wedlock from being in a state of uncertainty for a long time. It also aims to force early action to
settle any doubt as to the paternity of such child, so that the evidence material to the matter, which
must necessarily be facts occurring during the period of the conception of the child, may still be easily
available.

xxx xxx xxx

Only the husband can contest the legitimacy of a child born to his wife. He is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces; and he should
decide whether to conceal that infidelity or expose it, in view of the moral and economic interest
involved. It is only in exceptional cases that his heir are allowed to contest such legitimacy. Outside of
these cases, none even his heirs can impugn legitimacy; that would amount to an insult to his
memory. 9

The issue, therefore, as to whether petitioners are the legitimate children of Hermogenes Dezoller
cannot be properly controverted in the present action for reconveyance. This is aside, of course, from
the further consideration that private respondent is not the proper party to impugn the legitimacy of
herein petitioners. The presumption consequently continues to operate in favor of petitioners unless
and until it is rebutted.

Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests not on
herein petitioners who have the benefit of the presumption in their favor, but on private respondent
who is disputing the same. This fact alone should have been sufficient cause for the trial court to
exercise appropriate caution before acting, as it did, on the demurrer to evidence. It would have
delimited the issues for resolution, as well as the time and effort necessitated thereby.

Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption exists
does not have to introduce evidence to establish that fact, and in any litigation where that fact is put in
issue, the party denying it must bear the burden of proof to overthrow the presumption. 10 The
presumption of legitimacy is so strong that it is clear that its effect is to shift the burden of persuasion
to the party claiming illegitimacy. 11 And in order to destroy the presumption, the party against whom it
operates must adduce substantial and credible evidence to the contrary. 12

Where there is an entire lack of competent evidence to the contrary, 13 and unless or until it is
rebutted, it has been held that a presumption may stand in lieu of evidence and support a finding or
decision. 14 Perforce, a presumption must be followed if it is uncontroverted. This is based on the
theory that a presumption is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must stand as proved. 15

Indubitably, when private respondent opted not to present countervailing evidence to overcome the
presumption, by merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth
of such fact. Indeed, she overlooked or disregarded the evidential rule that presumptions like judicial
notice and admissions, relieve the proponent from presenting evidence on the facts he alleged and
such facts are thereby considered as duly proved.

II. The weight and sufficiency of the evidence regarding petitioner's relationship with Teodora Dezoller
Guerrero, whose estate is the subject of the present controversy, requires a more intensive and
extensive examination.

Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller
Tison, the baptismal, death and marriage certificates, the various certifications from the civil registrar,
a family picture, and several joint affidavits executed by third persons all of which she identified and
explained in the course and as part of her testimony.

The primary proof to be considered in ascertaining the relationship between the parties concerned is
the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime,
or sometime in 1946, categorically declared that the former is Teodora's niece. 16 Such a statement is
considered a declaration about pedigree which is admissible, as an exception to the hearsay rule,
under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the
declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree
is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration;
and (4) that the declaration was made ante litem motam, that is, not only before the commencement
of the suit involving the subject matter of the declaration, but before any controversy has arisen
thereon.

There is no dispute with respect to the first, second and fourth elements. What remains for analysis is
the third element, that is, whether or not the other documents offered in evidence sufficiently
corroborated the declaration made by Teodora Dezoller Guerrero in her lifetime regarding the
pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to present evidence other
than such declaration.

American jurisdiction has it that a distinction must be made as to when the relationship of the
declarant may be proved by the very declaration itself, or by other declarations of said declarant, and
when it must be supported by evidence aliunde. The rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through, but not from, the
declarant and to establish the admissibility of a declaration regarding claimant's pedigree, he may not
do by declarant's own statements as to declarant's relationship to the particular family. The reason is
that declarant's declaration of his own relationship is of a self-serving nature. Accordingly there must
be precedent proof from other sources that declarant is what he claimed to be, namely, a member of
the particular family; otherwise the requirement to admissibility that declarant's relationship to the
common family must appear is not met. But when the party claiming seeks to establish relationship in
order to claim directly from the declarant or the declarant's estate, the situation and the policy of the
law applicable are quite different. In such case the declaration of the decedent, whose estate is in
controversy, that he was related to the one who claims his estate, is admissible without other proof of
the fact of relationship. While the nature of the declaration is then disserving, that is not the real
ground for its admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the class to which the
declarations belong. The distinction we have note is sufficiently apparent; in the one case the
declarations are self-serving, in the other they are competent from reasons of necessity. 17 (Emphasis
ours.)

The general rule, therefore, is that where the party claiming seeks recovery against a relative
common to both claimant and declarant, but not from the declarant himself or the declarant's estate,
the relationship of the declarant to the common relative may not be proved by the declaration itself.
There must be some independent proof of this fact. 18 As an exception, the requirement that there be
other proof than the declarations of the declarant as to the relationship, does not apply where it is
sought to reach the estate of the declarant himself and not merely to establish a right through his
declarations to the property of some other member of the family. 19

We are sufficiently convinced, and so hold, that the present case is one instance where the general
requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate
of the declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero that
petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such
declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid a
failure of justice. 20 More importantly, there is in the present case an absolute failure by all and sundry
to refute that declaration made by the decedent.

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's
declaration and without need for further proof thereof, that petitioners are the niece and nephew of
Teodora Dezoller Guerrero. As held in one case, 21 where the subject of the declaration is the
declarant's own relationship to another person, it seems absurb to require, as a foundation for the
admission of the declaration, proof of the very fact which the declaration is offered to establish. The
preliminary proof would render the main evidence unnecessary.

Applying the general rule in the present case would nonetheless produce the same result. For while
the documentary evidence submitted by petitioners do not strictly conform to the rules on their
admissibility, we are however of the considered opinion that the same may be admitted by reason of
private respondent's failure to interpose any timely objection thereto at the time they were being
offered in evidence. 22 It is elementary that an objection shall
be made at the time when an alleged inadmissible document is offered in evidence, 23 otherwise, the
objection shall be treated as waived, 24 since the right to object is merely a privilege which the party
may waive. 25

As explained in Abrenica vs. Gonda, et al., 26 it has been repeatedly laid down as a rule of evidence
that a protest or objection against the admission of any evidence must be made at the proper time,
otherwise it will be deemed to have been waived. The proper time is when from the question
addressed to the witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with the statute is a waiver if
the provisions of the law. That objection to a question put to a witness must be made at the time the
question is asked. An objection to the admission of evidence on the ground of incompetency, taken
after the testimony has been given, is too late. 27 Thus, for instance, failure to object to parol evidence
given on the stand, where the party is in a position to object, is a waiver of any objections thereto. 28

The situation is aggravated by the fact that counsel for private respondent unreservedly cross-
examined petitioners, as the lone witness, on the documentary evidence that were offered. At no time
was the issue of the supposed inadmissibility thereof, or the possible basis for objection thereto, ever
raised. Instead, private respondent's counsel elicited answers from the witness on the circumstances
and regularity of her obtention of said documents: The observations later made by private respondent
in her comment to petitioners' offer of exhibits, although the grounds therefor were already apparent
at the time these documents were being adduced in evidence during the testimony of Corazon
Dezoller Tison but which objections were not timely raised therein, may no longer serve to rectify the
legal consequences which resulted therefrom. Hence, even assuming ex gratia argumenti that these
documents are inadmissible for being hearsay, but on account of herein private respondent's failure
to object thereto, the same may be admitted and considered as sufficient to prove the facts therein
asserted. 29

Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of Teodora
Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of Teodora
Dezoller 30 (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names of their
parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother of
Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K) the entries
wherein were made by petitioner Corazon Dezoller Tison as his daughter, together with the Joint
Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners are
the children of Hermogenes Dezoller these can be deemed to have sufficiently established the
relationship between the declarant and herein petitioners. This is in consonance with the rule that a
prima facie showing is sufficient and that only slight proof of the relationship is required. 31 Finally, it
may not be amiss to consider as in the nature of circumstantial evidence the fact that both the
declarant and the claimants, who are the subject of the declaration, bear the surname Dezoller. 32

III. The following provisions of the Civil Code provide for the manner by which the estate of the
decedent shall be divided in this case, to wit:

Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions.

Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate,
without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any,
under Article 1001.

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter
shall be entitled to one-half of the inheritance and the brothers and sisters or theirs children to the
other half.

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was automatically
reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal partnership. Applying
the aforequoted statutory provisions, the remaining half shall be equally divided between the widower
and herein petitioners who are entitled to jointly inherit in their own right. Hence, Martin Guerrero
could only validly alienate his total undivided three-fourths (3/4) share in the entire property to herein
private respondent. Resultantly, petitioners and private respondent are deemed co-owners of the
property covered by Transfer Certificate of Title No. 374012 in the proportion of an undivided one-
fourth (1/4) and three-fourths (3/4) share thereof, respectively.

All told, on the basis of the foregoing considerations, the demurrer to plaintiff's evidence should have
been, as it is hereby, denied. Nonetheless, private respondent may no longer be allowed to present
evidence by reason of the mandate under Section 1 of revised Rule 3 of the Rules of Court which
provides that "if the motion is granted but on appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present evidence." 33

WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby REVERSED and
SET ASIDE, and herein petitioners and private respondent are declared co-owners of the subject
property with an undivided one-fourth (1/4) and three-fourths (3/4) share therein, respectively.

SO ORDERED.

Romero, Puno and Mendoza, JJ., concur.

Torres, Jr., J., is on leave.

iv. Family reputation: Jison vs Court of Appeals

FIRST DIVISION

[G.R. No. 124853. February 24, 1998]

FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA JISON,


respondent.

DECISION

DAVIDE, JR., J.:

This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995
decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860cxii[1] which reversed the
decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No.
16373.cxiii[2] The latter dismissed the complaint of private respondent Monina Jison
(hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison
(hereafter FRANCISCO).

In issue is whether or not public respondent Court of Appeals committed reversible


error, which, in this instance, necessitates an inquiry into the facts. While as a general
rule, factual issues are not within the province of this Court, nevertheless, in light of the
conflicting findings of facts of the trial court and the Court of Appeals, this case falls
under an exception to this rule.cxiv[3]
In her complaintcxv[4] filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of
1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar
(who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a
result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had
enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by
his acts and that of his family. MONINA further alleged that FRANCISCO gave her
support and spent for her education, such that she obtained a Master's degree, became
a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of
FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial
declaration of her illegitimate status and that FRANCISCO support and treat her as
such.

In his answer,cxvi[5] FRANCISCO alleged that he could not have had sexual relations
with Esperanza Amolar during the period specified in the complaint as she had ceased
to be in his employ as early as 1944, and did not know of her whereabouts since then;
further, he never recognized MONINA, expressly or impliedly, as his illegitimate child.
As affirmative and special defenses, FRANCISCO contended that MONINA had no right
or cause of action against him and that her action was barred by estoppel, laches
and/or prescription. He thus prayed for dismissal of the complaint and an award of
damages due to the malicious filing of the complaint.

After MONINA filed her reply,cxvii[6] pre-trial was conducted where the parties stipulated
on the following issues:

1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about
the end of 1945 or the start of 1946?

2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the


latters own acts and those of his family?

3. Is Monina Jison barred from instituting or prosecuting the present action by


estoppel, laches and/or prescription?

4. Damages.cxviii[7]

At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely:
herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma,
Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz
and Lope Amolar.

Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked
for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo
residence. Towards the end of the Japanese occupation, FRANCISCOs wife suffered a
miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter,
FRANCISCOs wife managed a nightclub on the ground floor of Nelly Garden which
operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing
FRANCISCO free access to MONINAs mother, Esperanza Amolar, who was nicknamed
Pansay.

Adela Casabuena, a 61-year old farmer, testified that she served as the yaya (nanny) of
Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden
two (2) weeks before Adela started working for the Jisons, Pansay returned sometime in
September 1946, or about one month after she gave birth to MONINA, to ask
FRANCISCO for support. As a result, Pansay and Lilia Jison, FRANCISCO's wife,
quarreled in the living room, and in the course thereof, Pansay claimed that
FRANCISCO was the father of her baby. To which, Lilia replied: I did not tell you to
make that baby so it is your fault. During the quarrel which lasted from 10:30 till 11:00
a.m., FRANCISCO was supposedly inside the house listening.

Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he
worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol
Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the
bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCOs daughter,
would arrive at Bacolod City with a letter of introduction from Lagarto.

Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of
MONINA,cxix[8] and as he paid for the telephone bills, he likewise identified six (6)
telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in
Bacolod City, she introduced herself to him as FRANCISCOs daughter. She stayed at
FRANCISCOs house, but when the latter and his wife would come over, Arsenio would
conceal the presence of MONINA because Mrs. Jison did not like to see her face. Once,
Arsenio hid MONINA in the house of FRANCISCOs sister, Mrs. Luisa Jison Alano, in
Silay City; another time, at the residence of FRANCISCOs cousin, Mrs. Concha Lopez
Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she
left for Manila, after having finished her schooling at La Salle College in Bacolod City.

On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his
wife were around; that although FRANCISCO and MONINA saw each other at the
Bacolod house only once, they called each other through long distance; and that
MONINA addressed FRANCISCO as Daddy during their lone meeting at the Bacolod
house and were affectionate to each other. Arsenio likewise declared that MONINA
stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week
the second time. On both occasions, however, FRANCISCO and his wife were abroad.
Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like
his (FRANCISCOs) other daughters.

The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City,
initially touched on how he and his wife were related to FRANCISCO, FRANCISCO's
wife and MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the
Jison and Lopez families, which showed that former Vice-President Fernando Lopez
was the first cousin of FRANCISCOs wife, then told the court that the family of Vice-
President Lopez treated MONINA very well because she is considered a relative xxx by
reputation, by actual perception. Zafiro likewise identified Exhibits X-13 to X-18,
photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez,
which showed MONINA with the former Vice-President and other members of the Lopez
family.

Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for
some of MONINAs school needs and even asked MONINA to work in a hospital owned
by Mrs. Cuaycong; and that another first cousin of FRANCISCOs wife, a certain
Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and
even attended MONINAs graduation in 1978 when she obtained a masteral degree in
Business Administration, as evidenced by another photograph (Exh. X-12). Moreover,
upon Remedios recommendation, MONINA was employed as a secretary at Merchant
Financing Company, which was managed by a certain Danthea Lopez, the wife of
another first cousin of FRANCISCOs wife, and among whose directors were Zafiro
himself, his wife and Dantheas husband. In closing, Zafiro identified MONINAs Social
Security Record (Exh. W), which was signed by Danthea as employer and where
MONINA designated Remedios as the beneficiary.

Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first
cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the
latter part of 1965 when Remedios Franco recommended MONINA for employment at
Merchant Financing Co., which Danthea managed at that time. Remedios introduced
MONINA to Danthea as being reputedly the daughter of Mr. Frank Jison; and on several
occasions thereafter, Remedios made Danthea and the latters husband understand that
MONINA was reputedly the daughter of [FRANCISCO]. While MONINA worked at
Merchant Financing, Danthea knew that MONINA lived with Remedios; however, in the
latter part of 1966, as Remedios left for Manila and MONINA was still studying at San
Agustin University, Danthea and her husband invited MONINA to live with them. During
MONINAs 6-month stay with them, she was not charged for board and lodging and was
treated as a relative, not a mere employee, all owing to what Remedios had said
regarding MONINAs filiation. As Danthea understood, MONINA resigned from Merchant
Financing as she was called by Mrs. Cuaycong, a first cousin of Dantheas husband who
lived in Bacolod City.

Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO
from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer,
hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971,
Romeo saw and heard MONINA ask her Daddy (meaning FRANCISCO) for the money
he promised to give her, but FRANCISCO answered that he did not have the money to
give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of
September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and
bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and
MONINA entered a room while Romeo waited outside. When they came out, Atty. Tirol
had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be
released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol
intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz
gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she
signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive
for testifying, Romeo stated that he wanted to help MONINA be recognized as
FRANCISCOS daughter.

Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City; then in
1965, Rudy worked at FRANCISCOs office at Nelly Garden recording hacienda
expenses, typing vouchers and office papers, and, at times, acting as paymaster for the
haciendas. From the nature of his work, Rudy knew the persons receiving money from
FRANCISCOs office, and clearly remembered that in 1965, as part of his job, Rudy
gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a
certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first
met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCOs
wife was not around. On some of these occasions, MONINA would speak with and
address FRANCISCO as Daddy, without objection from FRANCISCO. In fact, in 1965,
Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April
1965, FRANCISCOs office paid P250.00 to Funeraria Bernal for the funeral expenses of
MONINAs mother. Finally, as to Rudy's motives for testifying, he told the court that he
simply wanted to help bring out the truth and nothing but the truth, and that MONINAs
filiation was common knowledge among the people in the office at Nelly Garden.

On re-direct, Rudy declared that the moneys given by FRANCISCOs office to MONINA
were not reflected in the books of the office, but were kept in a separate book, as Mr.
Lagarto explained that FRANCISCOs wife and children should not know [of] this. Rudy
further revealed that as to the garden meetings between FRANCISCO and MONINA,
Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and before
leaving, and FRANCISCOs reaction upon seeing her was to smile and say in the
Visayan dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA was free
to go inside the house as the household staff knew of her filiation, and that, sometimes,
MONINA would join them for lunch.

Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly
Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then
when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager.

Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her
P15.00 monthly allowance given upon FRANCISCOs standing order. Alfredo further
declared that MONINAs filiation was pretty well-known in the office; that he had seen
MONINA and FRANCISCO go from the main building to the office, with FRANCISCOs
arm on MONINAs shoulder; and that the office paid for the burial expenses of Pansay,
but this was not recorded in the books in order to hide it from FRANCISCOs wife.
Alfredo also disclosed that the disbursements for MONINAs allowance started in 1961
and were recorded in a separate cash book. In 1967, the allowances ceased when
MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co.,
which served as FRANCISCOs accountant-auditor. Once, when Alfredo went to the
offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the
preparation of FRANCISCOs income tax return, Alfredo chanced upon MONINA. When
Alfredo asked her how she came to work there, she answered that her Daddy,
FRANCISCO, recommended her, a fact confirmed by Mr. Atienza. Alfredo then claimed
that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of
FRANCISCO.

Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCOs


houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954,
MONINA and her mother Pansay went to Nelly Garden and spoke with FRANCISCO for
about an hour, during which time, Dominador was vacuuming the carpet about six (6) to
seven (7) meters away. Due to the noise of the vacuum cleaner, FRANCISCO and
MONINA spoke in loud voices, thus Dominador overheard their conversation. As
FRANCISCO asked Pansay why they came, Pansay answered that they came to ask
for the sustenance of his child MONINA. FRANCISCO then touched MONINA's head
and asked: How are you Hija?, to which MONINA answered: Good morning, Daddy.
After FRANCISCO told Pansay and MONINA to wait, he pulled something from his
wallet and said to Pansay: I am giving this for the child.

In May 1954, Dominador saw MONINA at Mr. Lagartos office where Dominador was to
get the days expenses, while MONINA was claiming her allowance from Mr. Diasnes.
The next month, Dominador saw MONINA at Nelly Garden and heard in the office that
MONINA was there to get her allowance from her Daddy. In December 1960,
Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of
FRANCISCOs wife), where she asked for a Christmas gift and she was calling Don
Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not around.
Then sometime in 1961, when Dominador went to Mr. Lagartos office to get the
marketing expenses, Dominador saw MONINA once more claiming her allowance.

Dominador further testified that in February 1966, after he had stopped working for
FRANCISCO, Dominador was at Mrs. Francos residence as she recommended him for
employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was
then about 15 years old, together with Mrs. Francos daughter and son. Mrs. Franco
pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador
answered that MONINA was FRANCISCOs daughter with Pansay, and then Mrs.
Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was
sending MONINA to school at the University of San Agustin.

Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy
from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to
work at Elena Apartments in Manila. By November 1945, Pansay was also working at
Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her.
Lope then confronted FRANCISCO, who told Lope dont get hurt and dont cause any
trouble, because I am willing to support your Inday Pansay and my child. Three (3) days
after this confrontation, Lope asked for and received permission from FRANCISCO to
resign because he (Lope) was hurt.

On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40
years old and a Central Bank Examiner. She affirmed that as evidenced by certifications
from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal certificates
(Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to
Esperanza Amolar (who passed away on 20 April 1965) and FRANCISCO. cxx[9]
MONINA first studied at Sagrado where she stayed as a boarder. While at Sagrado
from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her tuition fees
and other school expenses. She either received the money from FRANCISCO or from
Mr. Lagarto, or saw FRANCISCO give money to her mother, or Mr. Lagarto would pay
Sagrado directly. After Sagrado, MONINA studied in different schools, cxxi[10] but
FRANCISCO continuously answered for her schooling.

For her college education, MONINA enrolled at the University of Iloilo, but she later
dropped due to an accident which required a week's hospitalization. Although
FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most
of them. In 1963, she enrolled at the University of San Agustin, where she stayed with
Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school
supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each
semester, MONINA would show FRANCISCO that she was enrolled, then he would ask
her to canvass prices, then give her the money she needed. After finishing two (2)
semesters at University of San Agustin, as evidenced by her transcript of records (Exh.
Z showing that FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she transferred
to De Paul College, just in front of Mrs. Francos house, and studied there for a year.
Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she
obtained a bachelors degree in Commerce in April 1967. During her senior year, she
stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She
passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University
as evidenced by her transcript (Exh. AA), wherein FRANCISCO was likewise listed as
Guardian (Exhs. AA-1 and AA-2).

MONINA enumerated the different members of the household staff at Nelly Garden, to
wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid
Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and
others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis,
Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and identified
them from a photograph marked as Exhibit X-2. She then corroborated the prior
testimony regarding her employment at Merchant Financing Co., and her having lived at
Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while working at the
hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met FRANCISCO
at Elena Apartments at the corner of Romero and Salas Streets, Ermita. She told
FRANCISCO that she was going for a vacation in Baguio City with Mrs. Francos
mother, with whom she stayed up to June 1968. Upon her return from Baguio City,
MONINA told FRANCISCO that she wanted to work, so the latter arranged for her
employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was
interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start
working first week of September, sans examination. She resigned from Miller & Cruz in
1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA
went to see FRANCISCO, told him that she resigned and asked him for money to go to
Spain, but FRANCISCO refused as she could not speak Spanish and would not be able
find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out
of the house. In the process, MONINA broke many glasses at the pantry and cut her
hand, after which, FRANCISCO hugged her, gave her medicine, calmed her down,
asked her to return to Bacolod City and promised that he would give her the money.

MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket
(Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed
by Mr. Cruz. These calls were evidenced by PLDT long distance toll cards (Exhs. G to
L), with annotations at the back reading: charged and paid under the name of Frank L.
Jison and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification
as to the veracity of the contents of the toll cards (Exh. BB). Likewise introduced in
evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty. Tirol, on
MONINA's behalf (Exh. N).

MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo
and sign a certain affidavit, before Mr. Cruz would turn over the money promised by
FRANCISCO. She went to Atty. Tirols office in Iloilo, but after going over the draft of the
affidavit, refused to sign it as it stated that she was not FRANCISCOs daughter. She
explained that all she had agreed with FRANCISCO was that he would pay for her fare
to go abroad, and that since she was a little girl, she knew about her illegitimacy. She
started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded
that he was also a father and did not want this to happen to his children as they could
not be blamed for being brought into the world. She then wrote a letter (Exh. O) to
FRANCISCO and sent it to the latters Forbes Park residence (Bauhinia Place) by JRS
courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod
City where they discussed the affidavit which she refused to sign. FRANCISCO told her
that the affidavit was for his wife, that in case she heard about MONINA going abroad,
the affidavit would keep her peace.

MONINA then narrated that the first time she went to Atty. Tirols office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit
(Exh. P)cxxii[11] would boomerang against FRANCISCO as it is contrary to law. MONINA
returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but
Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed
the affidavit as she was jobless and needed the money to support herself and finish her
studies. In exchange for signing the document, MONINA received a Bank of Asia check
for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO
allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the
affidavit after notarizing it, MONINA merely grabbed a copy and immediately left.

MONINA then prepared to travel abroad, for which purpose, she procured letters of
introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs elder
sister Luisa); and an uncle, Emilio Jison (FRANCISCOs elder brother), addressed to
another cousin, Beth Jison (Emilios daughter), for Beth to assist MONINA. Exhibit S
contained a statement (Exh. S-1) expressly recognizing that MONINA was
FRANCISCOs daughter. Ultimately though, MONINA decided not to go abroad, opting
instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam
and graduate studies. After finishing her graduate studies, she again planned to travel
abroad, for which reason, she obtained a letter of introduction from former Vice
President Fernando Lopez addressed to then United States Consul Vernon McAnnich
(Exh. V).

As to other acts tending to show her filiation, MONINA related that on one occasion, as
FRANCISCOs wife was going to arrive at the latters Bacolod City residence,
FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus,
MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCOs wife.
MONINA also claimed that she knew Vice President Fernando Lopez and his wife,
Mariquit, even before starting to go to school. Thus, MONINA asked for a
recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with
Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs.
Lopez expressly recognized MONINA as FRANCISCOs daughter. As additional proof of
her close relationship with the family of Vice President Lopez, MONINA identified
photographs taken at a birthday celebration on 14 April 1985.

MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife,
namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met only Lourdes
and Junior. MONINA's testimony dealt lengthily on her dealings with Junior and the two
(2) occasions when she met with Lourdes. The last time MONINA saw FRANCISCO
was in March 1979, when she sought his blessings to get married.

In his defense, FRANCISCO offered his deposition taken before then Judge Romeo
Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses,
FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes
Ledesma, Jose Cruz and Dolores Argenal.

FRANCISCO declared that Pansays employment ceased as of October, 1944, and that
while employed by him, Pansay would sleep with the other female helpers on the first
floor of his residence, while he, his wife and daughter slept in a room on the second
floor. At that time, his household staff was composed of three (3) female workers and
two (2) male workers. After Pansay left in October 1944, she never communicated with
him again, neither did he know of her whereabouts. FRANCISCO staunchly denied
having had sexual relations with Pansay and disavowed any knowledge about
MONINAs birth. In the same vein, he denied having paid for MONINAs tuition fees, in
person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these
fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees
despite absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or
Remedios Franco, that MONINA was his daughter.

FRANCISCO also disclosed that upon his return from the United States in 1971, he
fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position
during the formers absence. FRANCISCO likewise fired Rudy Tingson and Romeo
Bilbao, but did not give the reasons therefor.

Finally, FRANCISCO denied knowledge of MONINAs long distance calls from his
Bacolod residence; nevertheless, when he subsequently discovered this, he fired
certain people in his office for their failure to report this anomaly. As regards the
caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived at
Mrs. Cuaycongs residence, the caretaker thought that he could allow people who lived
at the Cuaycong residence to use the facilities at his (FRANCISCOs) house.

Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to 1974,
then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he
did not know MONINA; that he learned of her only in June 1988, when he was informed
by FRANCISCO that MONINA had sued him; and that he never saw MONINA at Nellys
Garden, neither did he know of any instructions for anyone at Nellys Garden to give
money to MONINA.

Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986,


testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or
Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he
prepared vouchers for only one of FRANCISCOs haciendas, and not vouchers
pertaining to the latters personal expenses.

Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden from 1964
up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-charge
(OIC). He confirmed Alfredo Baylosis dismissal due to these unspecified irregularities,
then denied that FRANCISCO ever ordered that MONINA be given her allowance.
Likewise, Iigo never heard FRANCISCO mention that MONINA was his (FRANCISCOs)
daughter.

Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not know)
MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes first
son, Mark. Over lunch one day, Lourdes aunt casually introduced Lourdes and MONINA
to each other, but they were referred to only by their first names. Then sometime in
1983 or 1984, MONINA allegedly went to Lourdes house in Sta. Clara Subdivision
requesting for a letter of introduction or referral as MONINA was then job-hunting.
However, Lourdes did not comply with the request.

Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller &
Cruz from 1968 up to 1971, however, he did not personally interview her before she
was accepted for employment. Moreover, MONINA underwent the usual screening
procedure before being hired. Jose recalled that one of the accountants, a certain Mr.
Atienza, reported that MONINA claimed to be FRANCISCOs daughter. Jose then told
Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from
spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him
that she planned to leave for the United States and needed P20,000.00 for that
purpose, and in exchange, she would sign a document disclaiming filiation with
FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with
Jose, and at that meeting, MONINA confirmed Mr. Atienzas report. Jose then informed
Atty. Tirol, FRANCISCOs personal lawyer, about the matter.

Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office in Iloilo.
Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol. Jose
relayed Atty. Tirols message to MONINA through Mr. Atienza, then later, Atty. Tirol told
Jose to go to Iloilo with a check for P15,000.00. Jose complied, and at Atty. Tirols office,
Jose saw MONINA, Atty. Tirol and his secretary reading some documents. MONINA
then expressed her willingness to sign the document, sans revisions. Jose alleged that
he drew the P15,000.00 from his personal funds, subject to reimbursement from and
due to an understanding with FRANCISCO.

Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her
parents room; that she had not seen FRANCISCO give special treatment to Pansay;
that there was no unusual relationship between FRANCISCO and Pansay, and if there
was any, Dolores would have easily detected it since she slept in the same room as
Pansay. Dolores further declared that whenever FRANCISCOs wife was out of town,
Pansay would bring Lourdes downstairs at nighttime, and that Pansay would not sleep
in the room where FRANCISCO slept. Finally, Dolores declared that Pansay stopped
working for FRANCISCO and his wife in October, 1944.

The reception of evidence having been concluded, the parties filed their respective
memoranda.

It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINAs witnesses and about
half of MONINAs testimony on direct examination. Judge Norberto E. Devera, Jr. heard
the rest of MONINA's testimony and those of FRANCISCOs witnesses.

In its decision of 12 November 1990cxxiii[12] the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph thereof,
it observed:
This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina
Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at
the time when plaintiff, reckoned from her death of birth, was already thirty-nine years
old. Noteworthy also is the fact that it was instituted twenty years after the death of
plaintiffs mother, Esperanza Amolar. For the years between plaintiffs birth and
Esperanzas death, no action of any kind was instituted against defendant either by
plaintiff, her mother Esperanza or the latters parents. Neither had plaintiff brought such
an action against defendant immediately upon her mothers death on April 20, 1965,
considering that she was then already nineteen years old or, within a reasonable time
thereafter. Twenty years more had to supervene before this complaint was eventually
instituted.

The trial court then proceeded to discuss the four issues stipulated at pre-trial, without,
however, summarizing the testimonies of the witnesses nor referring to the testimonies
of the witnesses other than those mentioned in the discussion of the issues.

The trial court resolved the first issue in the negative, holding that it was improbable for
witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the
Elena Apartments in November 1945, since Pansay was then only in her first month of
pregnancy; that there was no positive assertion that copulation did indeed take place
between Francisco and Esperanza; and that MONINAs attempt to show opportunity on
the part of FRANCISCO failed to consider that there was also the opportunity for
copulation between Esperanza and one of the several domestic helpers admittedly also
residing at Nellys Garden at that time. The RTC also ruled that the probative value of
the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially
when the misspellings therein were considered.

The trial court likewise resolved the second issue in the negative, finding that MONINAs
evidence thereon may either be one of three categories, namely: hearsay evidence,
incredulous evidence, or self-serving evidence." To the first category belonged the
testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINAs
filiation was based, as to the former, on utterances of defendants wife Lilia and
Esperanza allegedly during the heat of their quarrel, while as to the latter, Alfredo's
conclusion was based from the rumors going [around] that plaintiff is defendants
daughter, from his personal observation of plaintiffs facial appearance which he
compared with that of defendants and from the way the two (plaintiff and defendant)
acted and treated each other on one occasion that he had then opportunity to closely
observe them together. To the second category belonged that of Dominador Savariz,
as:

At each precise time that Esperanza allegedly visited Nellys Garden and allegedly on
those occasions when defendants wife, Lilia was in Manila, this witness was there and
allegedly heard pieces of conversation between defendant and Esperanza related to the
paternity of the latters child. xxx
The RTC then placed MONINAs testimony regarding the acts of recognition accorded
her by FRANCISCOs relatives under the third category, since the latter were never
presented as witnesses, for which reason the trial court excluded the letters from
FRANCISCOs relatives (Exhs. S to V).

As to the third issue, the trial court held that MONINA was not barred by prescription for
it was of the perception that the benefits of Article 268 accorded to legitimate children
may be availed of or extended to illegitimate children in the same manner as the Family
Code has so provided; or by laches, which is [a] creation of equity applied only to bring
equitable results, and addressed to the sound discretion of the court [and] the
circumstances [here] would show that whether plaintiff filed this case immediately upon
the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, xxx there
seems to be no inequitable result to defendant as related to the situation of plaintiff.

The RTC ruled, however, that MONINA was barred by estoppel by deed because of the
affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-five years, a
professional and under the able guidance of counsel.

Finally, the RTC denied FRANCISCOs claim for damages, finding that MONINA did not
file the complaint with malice, she having been propelled by an honest belief, founded
on probable cause.

MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and
sought reversal of the trial courts decision on the grounds that:

THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS


CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANTS
DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE.

II

THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF


APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE.

III

THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE


CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS
PART OF HER EVIDENCE.

IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE
ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE AND APPELLANTS
MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT.

THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY


IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS
HEARSAY.

VI

THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS AFFIDAVIT (EXH.


P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF
REINFORCING SAID CLAIM.cxxiv[13]

Expectedly, FRANCISCO refuted these alleged errors in his Appellees Brief.cxxv[14]

In its decision of 27 April 1995,cxxvi[15] the Court of Appeals initially declared that as no
vested or acquired rights were affected, the instant case was governed by Article 175, in
relation to Articles 172 and 173, of the Family Code.cxxvii[16] While the Court of Appeals
rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E
and F) as FRANCISCO did not sign them, said court focused its discussion on the other
means by which illegitimate filiation could be proved, i.e., the open and continuous
possession of the status of an illegitimate child or, by any other means allowed by the
Rules of Court and special laws, such as the baptismal certificate of the child, a judicial
admission, a family bible wherein the name of the child is entered, common reputation
respecting pedigree, admission by silence, testimonies of witnesses xxx. cxxviii[17] To the
Court of Appeals, the bottom line issue was whether or not MONINA established her
filiation as FRANCISCOs illegitimate daughter by preponderance of evidence, as to
which issue said court found:

[N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is
the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such
status by direct acts of [FRANCISCO] and/or his relatives.

In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela
Casabuena and Dominador Savariz were already sufficient to establish MONINAs
filiation:

As adverted to earlier, the trial court discredited Lope Amolars testimony by saying that
Lope could not have detected Esperanzas pregnant state in November, 1945 since at
that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial
court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and
import of his testimony. As xxx Lope xxx was asked about an incident that transpired
more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that
Lope could still be dead right on the specific month in 1945 that [he] met and confronted
his sister. At any rate, what is important is not the month that they met but the essence
of his testimony that his sister pointed to their employer [FRANCISCO] as the one
responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured
him of support for Esperanza and their child. It would appear then that in an attempt to
find fault with Lopes testimony, the trial court has fallen oblivious to the fact that even
[FRANCISCO], in his deposition, did not deny that he was confronted by Lope about
what he had done to Esperanza, during which he unequivocally acknowledged paternity
by assuring Lope of support for both Esperanza and their child.

The Court of Appelas further noted that Casabuena and Savariz testified on something
that they personally observed or witnessed, which matters FRANCISCO did not deny or
refute. Finally, said court aptly held:

Taking into account all the foregoing uncontroverted testimonies xxx let alone such
circumstantial evidence as [MONINAs] Birth Certificates xxx and Baptismal Certificates
which invariably bear the name of [FRANCISCO] as her father, We cannot go along
with the trial courts theory that [MONINAs] illegitimate filiation has not been satisfactorily
established.

xxx

Significantly, [MONINAs] testimony finds ample corroboration from [FRANCISCOs]


former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. xxx

xxx

Carefully evaluating appellants evidence on her enjoyment of the status of an


illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion thereof,
We find more weight in the former. The positive testimonies of [MONINA] and [her]
witnesses xxx all bearing on [FRANCISCOs] acts and/or conduct indubitably showing
that he had continuously acknowledged [MONINA] as his illegitimate daughter have not
been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only
casually dismissed [MONINAs] exhaustive and detailed testimony as untrue, and with
respect to those given by [MONINAs] witnesses, he merely explained that he had fired
[them] from their employment. Needless to state, [FRANCISCOs] vague denial is
grossly inadequate to overcome the probative weight of [MONINAs] testimonial
evidence.

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree to
sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse xxx. Further, the testimony of Jose Cruz concerning
the events that led to the execution of the affidavit xxx could not have been true, for as
pointed out by [MONINA], she signed the affidavit xxx almost five months after she had
resigned from the Miller, Cruz & Co. xxx

At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled
for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn
statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost
of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his
paternity of [MONINA]. xxx

In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate daughter has


been conclusively established by the uncontroverted testimonies of Lope Amolar, Adela
Casabuena and Dominador Savariz to the effect that appellee himself had admitted his
paternity of the appellee, and also by the testimonies of appellant, Arsenio Duatin,
Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his
own conduct or overt acts like sending appellant to school, paying for her tuition fees,
school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de
Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly
allowance, paying for the funeral expenses of appellants mother, acknowledging
appellants paternal greetings and calling appellant his Hija or child, instructing his office
personnel to give appellants monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod
and paying for her long distance telephone calls, having appellant spend her vacation in
his apartment in Manila and also at his Forbes residence, allowing appellant to use his
surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5),
appellee had continuously recognized appellant as his illegitimate daughter. Added to
these are the acts of [FRANCISCOs] relatives acknowledging or treating [MONINA] as
[FRANCISCOs] daughter (Exh U) or as their relative (Exhs T & V). On this point,
witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the
Lopez clan just like [FRANCISCO], testified that [MONINA] has been considered by the
Lopezes as a relative. He identified pictures of the appellee in the company of the
Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband
Eusebio Lopez is appellees first cousin, testified that appellant was introduced to her by
appellees cousin, Remedios Lopez Franco, as the daughter of appellee Francisco
Jison, for which reason, she took her in as [a] secretary in the Merchants Financing
Corporation of which she was the manager, and further allowed her to stay with her
family free of board and lodging. Still on this aspect, Dominador Savariz declared that
sometime in February, 1966 appellees relative, Ms. Remedios Lopez Franco pointed to
appellant as the daughter of appellee Francisco Jison.

Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as
[MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt admitted in
evidence as part of [MONINAs] testimony, may serve as circumstantial evidence to
further reinforce [MONINAs] claim that she is [FRANCISCOs] illegitimate daughter by
Esperanza Amolar.
True it is that a trial judges assessment of the credibility of witnesses is accorded great
respect on appeal. But the rule admits of certain exceptions. One such exception is
where the judge who rendered the judgment was not the one who heard the witnesses
testify. [citations omitted] The other is where the trial court had overlooked,
misunderstood or misappreciated some facts or circumstances of weight and substance
which, if properly considered, might affect the result of the case. [citations omitted] In
the present case, both exceptions obtain. All of [MONINAs] witnesses xxx whose
testimonies were not given credence did not testify before the judge who rendered the
disputed judgment. xxx

The Court of Appeals then decreed:

WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and
another one is hereby entered for appellant Monina Jison, declaring her as the
illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges
granted by law.

Costs against appellee.

SO ORDERED.

His motion for reconsideration having been denied by the Court of Appeals in its
resolution of 29 March 1996,cxxix[18] FRANCISCO filed the instant petition. He urges us
to reverse the judgment of the Court of Appeals, alleging that said court committed
errors of law:

I.

IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE


RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING
[THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND
THE PRIVATE RESPONDENT'S MOTHER AT THE TIME CONCEPTION WAS
SUPPOSED TO HAVE OCCURRED.

II.

IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT PRIVATE


RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT
CLEAR AND CONVINCING.

III.

IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE


PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE
SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER
UNDER THE BASIC RULES OF EVIDENCE.
IV.

IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN STATEMENT (EXH.


P/EXH. 2) IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE
HONORABLE SUPREME COURT.

V.

IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF


THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES.

As regards the first error, FRANCISCO insists that taking into account the second
paragraph of MONINAs complaint wherein she claimed that he and Pansay had sexual
relations by about the end of 1945 or the start of 1946, it was physically impossible for
him and Pansay to have had sexual contact which resulted in MONINAs birth,
considering that:

The normal period of human pregnancy is nine (9) months. If as claimed by private
respondent in her complaint that her mother was impregnated by FRANCISCO at the
end of 1945 or the start of 1946, she would have been born sometime in late September
or early October and not August 6, 1946 xxx. The instant case finds factual and legal
parallels in Constantino vs. Mendez,cxxx[19] thus: xxx

FRANCISCO further claims that his testimony that Pansay was no longer employed by
him at the time in question was unrebutted, moreover, other men had access to Pansay
during the time of or even after her employment by him.

As to the second error, FRANCISCO submits that MONINAs testimonial evidence is


shaky, contradictory and unreliable, and proceeds to attack the credibility of her
witnesses by claiming, in the main, that: (a) Lope Amolar could not have detected
Pansays pregnancy in November 1945 when they met since she would have been only
one (1) month pregnant then; (b) Dominador Savariz did not in fact witness the meeting
between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive
in testifying for MONINA as he owned a bank in Iloilo which was then under Central
Bank supervision and MONINA was the Bank Examiner assigned to Iloilo; and (d)
Danthea Lopez was not related to him by blood and whatever favorable treatment
MONINA received from Danthea was due to the formers employment at Merchants
Financing Company and additional services rendered at Kahirup Hotel; besides,
Danthea admitted that she had no personal knowledge as to the issue of paternity and
filiation of the contending parties, hence Sections 39 and 40cxxxi[20] of Rule 130 of the
Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the
trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis.

FRANCISCO further asserts that MONINAs testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other documentary
evidence; and assuming he did, such should be interpreted as a manifestation of
kindness shown towards the family of a former household helper.

Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO
points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA
resided with the families of Eusebio Lopez and Concha Cuaycong because she was in
their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA
failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINAs
employment at the accounting firm of Miller, Cruz & Co. was attributable to her
educational attainment, there being absolutely no evidence to prove that FRANCISCO
ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot, cxxxii[21] the
quantum of evidence to prove paternity by clear and convincing evidence, not merely a
preponderance thereof, was not met.

With respect to the third assigned error, FRANCISCO argues that the Court of Appeals
reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal
Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First, their
genuineness could not be ascertained as the persons who issued them did not testify.
Second, in light of Reyes v. Court of Appeals,cxxxiii[22] the contents of the baptismal
certificates were hearsay, as the data was based only on what was told to the priest
who solemnized the baptism, who likewise was not presented as a witness. Additionally,
the name of the father appearing therein was Franque Jison, which was not
FRANCISCOs name. Third, in both Exhibits E and F, the names of the childs parents
were listed as Frank Heson and Esperanza Amador (not Amolar). FRANCISCO further
points out that in Exhibit F, the status of the child is listed as legitimate, while the fathers
occupation as laborer. Most importantly, there was no showing that FRANCISCO
signed Exhibits E and F or that he was the one who reported the childs birth to the
Office of the Local Civil Registrar. As to MONINAs educational records, FRANCISCO
invokes Baas v. Baascxxxiv[23] which recognized that school records are prepared by
school authorities, not by putative parents, thus incompetent to prove paternity. And, as
to the photographs presented by MONINA, FRANCISCO cites Colorado v. Court of
Appeals,cxxxv[24] and further asserts that MONINA did not present any of the persons with
whom she is seen in the pictures to testify thereon; besides these persons were, at
best, mere second cousins of FRANCISCO. He likewise assails the various notes and
letters written by his relatives (Exhs. S to V) as they were not identified by the authors.
Finally, he stresses that MONINA did not testify as to the telephone cards (Exhs. G to L)
nor did these reveal the circumstances surrounding the calls she made from his
residence.

Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals
interpretation of MONINAs affidavit of 21 September 1971 ran counter to Dequito v.
Llamas,cxxxvi[25] and overlooked that at the time of execution, MONINA was more than 25
years old and assisted by counsel.

As to the last assigned error, FRANCISCO bewails the Court of Appeals failure to
consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCOs arguments, leading
FRANCISCO to file his reply thereto.

On 20 November 1996, we gave due course to this petition and required the parties to
submit their respective memoranda, which they subsequently did.

A painstaking review of the evidence and arguments fails to support petitioner.

Before addressing the merits of the controversy, we first dispose of preliminary matters
relating to the applicable law and the guiding principles in paternity suits. As to the
former, plainly, the Family Code of the Philippines (Executive Order No. 209) governs
the present controversy. As correctly cited by the Court of Appeals, Uyguangco cxxxvii[26]
served as a judicial confirmation of Article 256 of the Family Code cxxxviii[27] regarding its
retroactive effect unless there be impairment of vested rights, which does not hold true
here, it appearing that neither the putative parent nor the child has passed away and the
former having actually resisted the latters claim below.

Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be
established in the same way and on the same evidence as that of legitimate children.
Article 172 thereof provides the various forms of evidence by which legitimate filiation is
established, thus:

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private


handwritten instrument signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code.

For the success of an action to establish illegitimate filiation under the second
paragraph, which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a high standard of proofcxxxix[28] is required. Specifically,
to prove open and continuous possession of the status of an illegitimate child, there
must be evidence of the manifestation of the permanent intention of the supposed father
to consider the child as his, by continuous and clear manifestations of parental affection
and care, which cannot be attributed to pure charity. Such acts must be of such a nature
that they reveal not only the conviction of paternity, but also the apparent desire to have
and treat the child as such in all relations in society and in life, not accidentally, but
continuously.cxl[29]

By continuous is meant uninterrupted and consistent, but does not require any particular
length of time.cxli[30]

The foregoing standard of proof required to establish ones filiation is founded on the
principle that an order for recognition and support may create an unwholesome
atmosphere or may be an irritant in the family or lives of the parties, so that it must be
issued only if paternity or filiation is established by clear and convincing evidence.cxlii[31]

The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence,
and the shifting of the burden of evidence in such cases. Simply put, he who alleges the
affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the
burden of proof never parts. However, in the course of trial in a civil case, once plaintiff
makes out a prima facie case in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiffs prima facie case, otherwise, a verdict must be returned
in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must
produce a preponderance of evidence thereon, with plaintiff having to rely on the
strength of his own evidence and not upon the weakness of the defendants. The
concept of preponderance of evidence refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it; at bottom, it means probability
of truth.cxliii[32]

With these in mind, we now proceed to resolve the merits of the instant controversy.

FRANCISCOs arguments in support of his first assigned error deserve scant


consideration. While it has been observed that unlawful intercourse will not be
presumed merely from proof of an opportunity for such indulgence,cxliv[33] this does not
favor FRANCISCO. Akin to the crime of rape where, in most instances, the only
witnesses to the felony are the participants in the sexual act themselves, in deciding
paternity suits, the issue of whether sexual intercourse actually occurred inevitably
redounds to the victims or mothers word, as against the accuseds or putative fathers
protestations. In the instant case, MONINAs mother could no longer testify as to the fact
of intercourse, as she had, unfortunately, passed away long before the institution of the
complaint for recognition. But this did not mean that MONINA could no longer prove her
filiation. The fact of her birth and her parentage may be established by evidence other
than the testimony of her mother. The paramount question then is whether MONINAs
evidence is coherent, logical and natural.cxlv[34]

The complaint stated that FRANCISCO had carnal knowledge of Pansay by about the
end of 1945. We agree with MONINA that this was broad enough to cover the fourth
quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual
relations between FRANCISCO and MONINAs mother. In any event, since it was
established that her mother was still in the employ of FRANCISCO at the time MONINA
was conceived as determined by the date of her birth, sexual contact between
FRANCISCO and MONINAs mother was not at all impossible, especially in light of the
overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has
recognized her as his daughter and that MONINA has been enjoying the open and
continuous possession of the status as FRANCISCOs illegitimate daughter.

We readily conclude that the testimonial evidence offered by MONINA, woven by her
narration of circumstances and events that occurred through the years, concerning her
relationship with FRANCISCO, coupled with the testimonies of her witnesses,
overwhelmingly established the following facts:

1) FRANCISCO is MONINAs father and she was conceived at the time when her
mother was in the employ of the former;

2) FRANCISCO recognized MONINA as his child through his overt acts and
conduct which the Court of Appeals took pains to enumerate, thus:

[L]ike sending appellant to school, paying for her tuition fees, school uniforms,
books, board and lodging at the Colegio del Sagrado de Jesus, defraying
appellants hospitalization expenses, providing her with [a] monthly allowance,
paying for the funeral expenses of appellants mother, acknowledging
appellants paternal greetings and calling appellant his Hija or child, instructing
his office personnel to give appellants monthly allowance, recommending
appellant for employment at the Miller, Cruz & Co., allowing appellant to use his
house in Bacolod and paying for her long distance telephone calls, having
appellant spend her vacation in his apartment in Manila and also at his Forbes
residence, allowing appellant to use his surname in her scholastic and other
records (Exhs Z, AA, AA-1 to AA-5, W & W-5)

3) Such recognition has been consistently shown and manifested throughout the
years publicly,cxlvi[35] spontaneously, continuously and in an uninterrupted
manner.cxlvii[36]

Accordingly, in light of the totality of the evidence on record, the second assigned error
must fail.

There is some merit, however, in the third assigned error against the probative value of
some of MONINAs documentary evidence.

MONINAs reliance on the certification issued by the Local Civil Registrar concerning her
birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth
purportedly identifying the putative father is not competent evidence as to the issue of
paternity, when there is no showing that the putative father had a hand in the
preparation of said certificates, and the Local Civil Registrar is devoid of authority to
record the paternity of an illegitimate child upon the information of a third person.cxlviii[37]
Simply put, if the alleged father did not intervene in the birth certificate, e.g., supplying
the information himself, the inscription of his name by the mother or doctor or registrar is
null and void; the mere certificate by the registrar without the signature of the father is
not proof of voluntary acknowledgment on the latters part.cxlix[38] In like manner,
FRANCISCOs lack of participation in the preparation of the baptismal certificates (Exhs.
C and D) and school records (Exhs. Z and AA) renders these documents incompetent
to prove paternity, the former being competent merely to prove the administration of the
sacrament of baptism on the date so specified.cl[39] However, despite the inadmissibility
of the school records per se to prove paternity, they may be admitted as part of
MONINAs testimony to corroborate her claim that FRANCISCO spent for her education.

We likewise disagree with the ruling of the Court of Appeals that the certificates issued
by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINAs filiation. Since they are per se inadmissible
in evidence as proof of such filiation, they cannot be admitted indirectly as
circumstantial evidence to prove the same.

As to Exhibits S, T, U and V, the various notes and letters written by FRANCISCOs


relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez,
respectively, allegedly attesting to MONINAs filiation, while their due execution and
authenticity are not in issue,cli[40] as MONINA witnessed the authors signing the
documents, nevertheless, under Rule 130, Section 39, the contents of these documents
may not be admitted, there being no showing that the declarants-authors were dead or
unable to testify, neither was the relationship between the declarants and MONINA
shown by evidence other than the documents in question.clii[41] As to the admissibility of
these documents under Rule 130, Section 40, however, this requires further
elaboration.

Rule 130, Section 40, provides:

Section 40. Family reputation or tradition regarding pedigree. -- The reputation or


tradition existing in a family previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the witness testifying thereon be
also a member of the family, either by consanguinity or affinity. Entries in family bibles
or other family books or charts, engravings on rings, family portraits and the like, may
be received as evidence of pedigree. (underscoring supplied)

It is evident that this provision may be divided into two (2) parts: the portion containing
the first underscored clause which pertains to testimonial evidence, under which the
documents in question may not be admitted as the authors thereof did not take the
witness stand; and the section containing the second underscored phrase. What must
then be ascertained is whether Exhibits S to V, as private documents, fall within the
scope of the clause and the like as qualified by the preceding phrase [e]ntries in family
bibles or other family books or charts, engravings on rights [and] family portraits.

We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as family possessions, or those articles which represent, in effect, a
familys joint statement of its belief as to the pedigree of a person.cliii[42] These have been
described as objects openly exhibited and well known to the family, cliv[43] or those which,
if preserved in a family, may be regarded as giving a family tradition. clv[44] Other
examples of these objects which are regarded as reflective of a familys reputation or
tradition regarding pedigree are inscriptions on tombstones,clvi[45] monuments or coffin
plates.clvii[46]

Plainly then, Exhibits S to V, as private documents not constituting "family possessions"


as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither
may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common
reputation,clviii[47] it having been observed that:

[T]he weight of authority appears to be in favor of the theory that it is the general repute,
the common reputation in the family, and not the common reputation in community, that
is a material element of evidence going to establish pedigree. xxx [Thus] matters of
pedigree may be proved by reputation in the family, and not by reputation in the
neighborhood or vicinity, except where the pedigree in question is marriage which may
be proved by common reputation in the community.clix[48]

Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like manner as


MONINA's school records, properly be admitted as part of her testimony to strengthen
her claim that, indeed, relatives of FRANCISCO recognized her as his daughter.

We now direct our attention to MONINAs 21 September 1971 affidavit (Exh. P/Exh. 2),
subject of the fourth assigned error, where she attests that FRANCISCO is not her
father. MONINA contends that she signed it under duress, i.e., she was jobless, had no
savings and needed the money to support herself and finish her studies. Moreover, she
signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived
and that FRANCISCOs ploy would boomerang upon him. On the other hand,
FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was
already 25 years old at the time of its execution and was advised by counsel; further,
being a notarized document, its genuineness and due execution could not be
questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of
Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading
rumors about her filiation within the firm, which might have had deleterious effects upon
the relationship between the firm and FRANCISCO.

On this issue, we find for MONINA and agree with the following observations of the
Court of Appeals:

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does
not hold sway in the face of [MONINAs] logical explanation that she at first did agree to
sign the affidavit which contained untruthful statements. In fact, she promptly
complained to [FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse xxx.
At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled
for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn
statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost
of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his
paternity of [MONINA]. xxx

Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would have
been unnecessary for him to have gone to such great lengths in order that MONINA
denounce her filiation. For as clearly established before the trial court and properly
appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5)
months prior to the execution of the sworn statement in question, hence negating
FRANCISCOs theory of the need to quash rumors circulating within Miller & Cruz
regarding the identity of MONINAs father. Hence, coupled with the assessment of the
credibility of the testimonial evidence of the parties discussed above, it is evident that
the standard to contradict a notarial document, i.e., clear and convincing evidence and
more than merely preponderant,clx[49] has been met by MONINA.

Plainly then, the burden of evidence fully shifted to FRANCISCO.

Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that his
testimony was comprised of mere denials, rife with bare, unsubstantiated responses
such as That is not true, I do not believe that, or None that I know. In declining then to
lend credence to FRANCISCOs testimony, we resort to a guiding principle in adjudging
the credibility of a witness and the truthfulness of his statements, laid down as early as
1921:

The experience of courts and the general observation of humanity teach us that the
natural limitations of our inventive faculties are such that if a witness undertakes to
fabricate and deliver in court a false narrative containing numerous details, he is almost
certain to fall into fatal inconsistencies, to make statements which can be readily
refuted, or to expose in his demeanor the falsity of his message.

For this reason it will be found that perjurers usually confine themselves to the incidents
immediately related to the principal fact about which they testify, and when asked about
collateral facts by which their truthfulness could be tested, their answers not infrequently
take the stereotyped form of such expressions as I dont know or I dont remember.
xxxclxi[50]

Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove ill-
motive on their part to falsely testify in MONINAs favor may not succeed. As may be
gleaned, the only detail which FRANCISCO could furnish as to the circumstances
surrounding the dismissals of his former employees was that Baylosis allegedly took
advantage of his position while FRANCISCO was in the United States. But aside from
this bare claim, FRANCISCOs account is barren, hence unable to provide the basis for
a finding of bias against FRANCISCO on the part of his former employees.
As to FRANCISCOs other witnesses, nothing substantial could be obtained either.
Nonito Jalandoni avowed that he only came to know of MONINA in June 1988;clxii[51] that
during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever
having seen MONINA there, neither did he know of any instructions from FRANCISCO
nor Mr. Lagarto (FRANCISCOs office manager before passing away) regarding the
disbursement of MONINAs allowance.clxiii[52] Teodoro Zulla corroborated Jalandonis
testimony regarding not having seen MONINA at Nelly Garden and MONINAs
allowance; declared that Alfredo Baylosis was dismissed due to discrepancies
discovered after an audit, without any further elaboration, however; but admitted that he
never prepared the vouchers pertaining to FRANCISCOs personal expenses, merely
those intended for one of FRANCISCOs haciendas.clxiv[53] Then, Iigo Superticioso
confirmed that according to the report of a certain Mr. Atienza, Baylosis was dismissed
by Mr. Jison for irregularities, while Superticioso was informed by FRANCISCO that
Tingson was dismissed for loss of confidence. Superticioso likewise denied that
MONINA received money from FRANCISCOs office, neither was there a standing order
from FRANCISCO to release funds to her.clxv[54]

It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINAs evidence. The former merely consist of
denials as regards the latters having gone to Nelly Garden or having received her
allowance from FRANCISCOs office, which, being in the form of negative testimony,
necessarily stand infirm as against positive testimony;clxvi[55] bare assertions as regards
the dismissal of Baylosis; ignorance of FRANCISCOs personal expenses incapable of
evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay
evidence as regards the cause for the dismissals of Baylosis and Tingson. But what
then serves as the coup de grce is that despite Superticiosos claim that he did not know
MONINA,clxvii[56] when confronted with Exhibit H, a telephone toll ticket indicating that on
18 May 1971, MONINA called a certain Eing at FRANCISCOs office, Superticioso
admitted that his nickname was Iing and that there was no other person named Iing in
FRANCISCOs office.clxviii[57]

All told, MONINAs evidence hurdled the high standard of proof required for the success
of an action to establish ones illegitimate filiation when relying upon the provisions
regarding open and continuous possession or any other means allowed by the Rules of
Court and special laws; moreover, MONINA proved her filiation by more than mere
preponderance of evidence.

The last assigned error concerning laches likewise fails to convince. The essential
elements of laches are: (1) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay
in asserting the complainants rights, the complainant having had knowledge or notice of
the defendants conduct as having been afforded an opportunity to institute a suit; (3)
lack of knowledge or notice on the part of the defendant that the complaint would assert
the right in which he bases his suit; and (4) injury or prejudice to the defendant in the
event relief is accorded to the complainant, or the suit is not held barred. clxix[58] The last
element is the origin of the doctrine that stale demands apply only where by reason of
the lapse of time it would be inequitable to allow a party to enforce his legal rights. clxx[59]

As FRANCISCO set up laches as an affirmative defense, it was incumbent upon him to


prove the existence of its elements. However, he only succeeded in showing MONINAs
delay in asserting her claim, but miserably failed to prove the last element. In any event,
it must be stressed that laches is based upon grounds of public policy which requires,
for the peace of society, the discouragement of stale claims, and is principally a
question of the inequity or unfairness of permitting a right or claim to be enforced or
asserted. There is no absolute rule as to what constitutes laches; each case is to be
determined according to its particular circumstances. The question of laches is
addressed to the sound discretion of the court, and since it is an equitable doctrine, its
application is controlled by equitable considerations. It cannot be worked to defeat
justice or to perpetuate fraud and injustice.clxxi[60] Since the instant case involves
paternity and filiation, even if illegitimate, MONINA filed her action well within the period
granted her by a positive provision of law. A denial then of her action on ground of
laches would clearly be inequitable and unjust.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the
challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860
is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.

v. Common Reputation

vi. Res Gestae: People of the Philippines vs Feliciano

THIRD DIVISION

G.R. No. 196735 May 5, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,


vs.
DANILO FELICIANO, JR., JULIUS VICTOR MEDALLA, CHRISTOPHER SOLIVA,
WARREN L. ZINGAPAN, and ROBERT MICHAEL BELTRAN ALVIR, Accused-
appellants.

DECISION
LEONEN, J.:

It is in the hallowed grounds of a university where students, faculty, and research personnel
should feel safest. After all, this is where ideas that could probably solve the sordid realities in
this world are peacefully nurtured and debated. Universities produce hope. They incubate all our
youthful dreams.

Yet, there are elements within this academic milieu that trade misplaced concepts of perverse
brotherhood for these hopes. Fraternity rumbles exist because of past impunity. This has resulted
in a senseless death whose justice is now the subject matter of this case. It is rare that these cases
are prosecuted. It is even more extraordinary that there are credible witnesses who present
themselves courageously before an able and experienced trial court judge.

This culture of impunity must stop. There is no space in this society for hooliganism disguised as
fraternity rumbles. The perpetrators must stand and suffer the legal consequences of their
actions. They must do so for there is an individual who now lies dead, robbed of his dreams and
the dreams of his family. Excruciating grief for them will never be enough.

It is undisputed that on December 8, 1994, at around 12:30 to 1:00 in the afternoon, seven (7)
members of the Sigma Rho fraternity were eating lunch at the Beach House Canteen, near the
Main Library of the University of the Philippines, Diliman, when they were attacked by several
masked men carrying baseball bats and lead pipes. Some of them sustained injuries that required
hospitalization. One of them, Dennis Venturina, died from his injuries.

An information1 for murder, docketed as Criminal Case No. Q95-6113 3, was filed against
several members of the Scintilla Juris fraternity, namely, Danilo Feliciano, Jr., Julius Victor L.
Medalla, Warren L. Zingapan, Robert Michael Beltran Alvir, Christopher L. Soliva, Reynaldo G.
Ablanida, Carlo Jolette Fajardo, George Morano, Raymund E. Narag, Gilbert Merle Magpantay,
Benedict Guerrero, and Rodolfo Penalosa, Jr. with the Regional Trial Court of Quezon City,
Branch 219. The information reads:

That on or about the 8th day of December 1994, in Quezon City, Philippines, the above-named
accused, wearing masks and/or other forms of disguise, conspiring, confederating with other
persons whose true names, identities and whereabouts have not as yet been ascertained, and
mutually helping one another, with intent to kill, qualified with treachery, and with evident
premeditation, taking advantage of superior strength, armed with baseball bats, lead pipes, and
cutters, did then and there willfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of DENNIS F. VENTURINA, by then and there hitting him
on the head and clubbing him on different parts of his body thereby inflicting upon him serious
and mortal injuries which were the direct and immediate cause of his death, to the damage and
prejudice of the heirs of said DENNIS F. VENTURINA. (Emphasis supplied)

Separate informations were also filed against them for the attempted murder of Sigma Rho
fraternity members Cesar Mangrobang, Jr.,2 Cristobal Gaston, Jr.,3 and Leandro Lachica,4 and
the frustrated murder of Sigma Rho fraternity members Mervin Natalicio5 and Amel Fortes.6
Only 11 of the accused stood trial since one of the accused, Benedict Guerrero, remained at
large.

A trial on the merits ensued.

The facts, according to the prosecution, are as follows:

Leandro Lachica, Amel Fortes, Derinis Venturina, Mervin Natalicio, Cristobal Gaston, Jr., Felix
Tumaneng,7 and Cesar Magrobang, Jr. are all members of the Sigma Rho Fraternity. On
December 8, 1994, at around 12:30 to 1 :00 p.m., they were having lunch at Beach House
Canteen, located at the back of the Main Library of the University of the Philippines, Diliman,
Quezon City.8 Suddenly, Dennis Venturina shouted, "Brads, brods!"9

According to Leandro Lachica, Grand Archon of Sigma Rho Fraternity, he looked around when
Venturina shouted, and he saw about ten (10) men charging toward them.10 The men were
armed with baseball bats and lead pipes, and their heads were covered with either handkerchiefs
or shirts.11 Within a few seconds, five (5) of the men started attacking him, hitting him with
their lead pipes.12 During the attack, he recognized one of the attackers as Robert Michael
Beltran Alvir because his mask fell off.13

Lachica tried to parry the blows of.his attackers, suffering scratches and contusions.14

He was, however, able to run to the nearby College of Education.15 Just before reaching it, he
looked back and saw Warren Zingapan and Julius Victor L. Medalla holding lead pipes and
standing where the commotion was.16 Both of them did not have their masks on.17 He was
familiar with Alvir, Zingapan, and Medalla because he often saw them in the College of Social
Sciences and Philosophy (CSSP) and Zingapan used to be his friend.18 The attack lasted about
thirty (30) to forty-five (45) seconds.19

According to Mervin Natalicio, the Vice Grand Archon of Sigma Rho, he looked to his left when
Venturina shouted.20 He saw about fifteen (15) to twenty (20) men, most of who were wearing
masks, running toward them.21 He was stunned, and he started running.22 He stumbled over the
protruding roots of a tree.23 He got up, but the attackers came after him and beat him up with
lead pipes and baseball bats until he fell down.24 While he was parrying the blows, he
recognized two (2) of the attackers as Warren Zingapan and Christopher L. Soliva since they
were not wearing any masks.25 After about thirty (30) seconds, they stopped hitting him.26

He was lying on his back and when he looked up, he saw another group of four (4) to five (5)
men coming toward him, led by Benedict Guerrero.27 This group also beat him up.28 He did not
move until another group of masked men beat him up for about five (5) to eight (8) seconds.29

When the attacks ceased, he was found lying on the ground.30 Several bystanders brought him to
the U.P. Infirmary where he stayed for more than a week for the treatment of his wounds and
fractures.31
According to Cesar Mangrobang, Jr., member of Sigma Rho, he also looked back when
Venturina shouted and saw a group of men with baseball bats and lead pipes. Some of them wore
pieces of cloth around their heads.32 He ran when they attacked, but two (2) men, whose faces
were covered with pieces of cloth, blocked his way and hit him with lead pipes.33 While running
and parrying the blows, he recognized them as Gilbert Merle Magpantay and Carlo Jolette
Fajardo because their masks fell off.34 He successfully evaded his attackers and ran to the Main
Library.35 He then decided that he needed to help his fraternity brothers and turned back toward
Beach House.36 There, he saw Venturina lying on the ground.37 Danilo Feliciano, Jr. was
beating Venturina up with a lead pipe while Raymund E. Narag was aiming to hit Venturina.38
When they saw him, they went toward his direction.39 They were about to hit him when
somebody shouted that policemen were coming. Feliciano and Narag then ran away.40

Cesar Mangrobang, Jr. then saw Amel Fortes. Fortes accompanied him to his car so they could
bring Venturina to the U.P. Infirmary.41 When they brought the car over, other people,
presumably bystanders, were already loading Venturina into another vehicle.42 They followed
that vehicle to the U.P. Infirmary where they saw Natalicio.43 He stayed at the infirmary until
the following morning.44

According to Cristobal Gaston, Jr., member of Sigma Rho, he immediately stood up when he
heard someone shout, "Brods!"45 He saw a group of men charging toward them carrying lead
pipes and baseball bats.46 Most of them had pieces of cloth covering their faces.47 He was about
to run when two (2) of the attackers approached him.48 One struck him with a heavy pipe while
the other stabbed him with a bladed instrument.49 He was able to parry most of the blows from
the lead pipe, but he sustained stab wounds on the chest and on his left forearm.50

He was able to run away.51 When he sensed that no one was chasing him, he looked back to
Beach House Canteen and saw Danilo Feliciano, Jr., Warren Zingapan, and George Morano.52
He decided to go back to the canteen to help his fraternity brothers.53 When he arrived, he did
not see any of his fraternity brothers but only saw the ones who attacked them.54 He ended up
going to their hang-out instead to meet with his other fraternity brothers.55 They then proceeded
to the College of Law where the rest of the fraternity was already discussing the incident.56

According to Amel Fortes, member of Sigma Rho, he also ran when he saw the group of
attackers coming toward them.57 When he looked back, he saw Danilo Feliciano, Jr. hitting
Venturina.58 He was also able to see Warren Zingapan and George Morano at the scene.59

Leandro Lachica, in the meantime, upon reaching the College of Education, boarded a jeepney to
the College of Law to wait for their other fraternity brothers.60 One of his fraternity brothers,
Peter Corvera, told him that he received information that members of Scintilla Juris were seen in
the west wing of the Main Library and were regrouping in SM North.61 Lachica and his group
then set off for SM North to confront Scintilla Juris and identify their attackers.62

When they arrived in SM North, pillboxes and stones were thrown at them.63 Lachica saw
Robert Michael Beltran Alvir and Warren Zingapan and a certain Carlo Taparan.64 They had no
choice but to get away from the mall and proceed instead to U.P. where the Sigma Rho
Fraternity members held a meeting.65
On the night of December 8, 1994, the officers of Sigma Rho advised the victims to lodge their
complaints with the National Bureau of Investigation.66 Their counsel, Atty. Frank Chavez, told
the U.P. Police that the victims would be giving their statements before the National Bureau of
Investigation, promising to give the U.P. Police copies of their statements. In the meantime,
Venturina was transferred from the U.P. Infirmary to St. Luke's Hospital on December 8, 1994.
He died on December 10, 1994.67 On December 11, 1994, an autopsy was conducted on the
cadaver of Dennis Venturina.68 Dr. Rolando Victoria, a medico-legal officer of the National
Bureau of Investigation, found that Venturina had "several contusions located at the back of the
upper left arm and hematoma on the back of both hands,"69 "two (2) lacerated wounds at the
back of the head,70 generalized hematoma on the skull,"71 "several fractures on the head,"72
and "inter-cranial hemorrhage."73 The injuries, according to Dr. Victoria, could have been
caused by a hard blunt object.74 Dr. Victoria concluded that Venturina died of traumatic head
injuries.75

On December 12, 1994, Lachica, Natalicio, Mangrobang, Fortes, and Gaston executed their
respective affidavits76 before the National Bureau of Investigation and underwent medico-legal
examinations77 with their medicolegal officer, Dr. Aurelio Villena. According to Dr. Villena, he
found that Mervin Natalicio had "lacerated wounds on the top of the head, above the left ear, and
on the fingers; contused abrasions on both knees; contusion on the left leg and thigh,"78 all of
which could have been caused by any hard, blunt object. These injuries required medical
attendance for a period of ten (10) days to thirty (30) days from the date of infliction.79

Dr. Villena found on Amel Fortes "lacerated wounds on the head and on the right leg which
could have been caused by a blunt instrument."80 These injuries required hospitalization for a
period of ten (10) days to thirty (30) days from date of infliction.81 He also found on Cesar
Mangrobang, Jr. a "healed abrasion on the left forearm which could possibly be caused by
contact with [a] rough hard surface and would require one (1) to nine (9) days of medical
attention."82 He found on Leandro Lachica "contusions on the mid auxiliary left side, left
forearm and lacerated wound on the infra scapular area, left side."83 On Christopher Gaston, Jr.
he found "lacerated wounds on the anterior chest, left side, left forearm; swollen knuckles of
both hands; contusions on the mid auxiliary left side, left forearm and lacerated wound on the
infra scapular area, left side."84

On September 18, 1997, after the prosecution presented its evidence-in-chief, the court granted
the demurrer to evidence filed by Rodolfo Penalosa, Jr. on the ground that he was not identified
by the prosecution's witnesses and that he was not mentioned in any of the documentary
evidence of the prosecution.85

Upon the presentation of their evidence, the defense introduced their own statement of the facts,
as follows:

According to Romeo Cabrera,86 a member of the U.P. Police, he was on foot patrol with another
member of the U.P. Police, Oscar Salvador, at the time of the incident. They were near the
College of Arts and Sciences (Palma Hall) when he vaguely heard somebody shouting,
"Rumble!" They went to the place where the alleged rumble was happening and saw injured men
being helped by bystanders. They helped an injured person board the service vehicle of the
Beach House Canteen. They asked what his name was, and he replied that he was Mervin
Natalicio. When he asked Natalicio who hit him, the latter was not able to reply but instead told
him that his attackers were wearing masks. Oscar Salvador87 corroborated his testimony.

Benjamin Lato,88 a utility worker of the Beach House Canteen, likewise testified that the
identities of the attackers were unrecognizable because of their masks. He, however, admitted
that he did not see the attack; he just saw a man sprawled on the ground at the time of the
incident.

Frisco Capilo,89 a utility worker of U.P. assigned to the Main Library, was buying a cigarette at
a vendor located nearby. From there, he allegedly saw the whole incident. He testified that ten
(10) men, wearing either masks of red and black bonnets or with shirts covering their faces, came
from a red car parked nearby. He also saw three (3) men being hit with lead pipes by the masked
men. Two (2) of the men fell after being hit. One of the victims was lifting the other to help him,
but the attackers overtook him. Afterwards, the attackers ran away. He then saw students helping
those who were injured. He likewise helped in carrying one of the injured victims, which he later
found out to be Amel Fortes.

A U.P. student and member of the Sigma Alpha Nu Sorority, Eda Panganiban,90 testified that
she and her friends were in line to order lunch at the Beach House Canteen when a commotion
happened. She saw around fifteen (15) to eighteen (18) masked men attack a group of Sigma
Rhoans. She did not see any mask fall off. Her sorority sister and another U.P. student, Luz
Perez,91 corroborated her story that the masked men were unrecognizable because of their
masks. Perez, however, admitted that a member of Scintilla Juris approached her to make a
statement.

Another sorority sister, Bathalani Tiamzon,92 testified on substantially the same matters as
Panganiban and Perez. She also stated that she saw a person lying on the ground who was being
beaten up by about three (3) to five (5) masked men. She also stated that some of the men were
wearing black masks while some were wearing white t-shirts as masks. She did not see any mask
fall off the faces of the attackers.

According to Feliciana Feliciano,93 accused-appellant Danilo Feliciano, Jr.'s motlier, her son
was in Pampanga to visit his sick grandfather at the time of the incident. She alleged that her son
went to Pampanga before lunch that day and visited the school where she teaches to get their
house key from her.

According to Robert Michael Beltran Alvir,94 he had not been feeling well since December 5,
1994. He said that he could not have possibly been in U.P. on December 8, 1994 since he was
absent even from work. He also testified that he wore glasses and, thus, could not have possibly
been the person identified by Leandro Lachica. He also stated that he was not enrolled in U.P. at
the time since he was working to support himself.

According to Julius Victor Medalla,95 he and another classmate, Michael Vibas, were working
on a school project on December 8, 1994. He also claimed that he could not have participated in
the rumble as he had an injury affecting his balance. The injury was caused by an incident in
August 1994 when he was struck in the head by an unknown assailant. His testimony was
corroborated by Jose Victor Santos96 who stated that after lunch that day, Medalla played darts
with him and, afterwards, they went to Jollibee.

Christopher Soliva,97 on the other hand, testified that he was eating lunch with his girlfriend and
another friend in Jollibee, Philcoa, on December 8, 1994. They went back to U.P. before 1:00
p.m. and went straight to their fraternity hang-out where he was told that there had been a rumble
at the Main Library. He also met several Sigma Rhoans acting suspiciously as they passed by the
hang-out. They were also told by their head, Carlo Taparan, not to react to the Sigma Rhoans and
just go home. Anna Cabahug,98 his girlfriend, corroborated his story.

Warren Zingapan99 also testified that he was not in U.P. at the time of the incident. He claimed
to have gone to SM North to buy a gift for a friend's wedding but ran into a fraternity brother. He
also alleged that some Sigma Rhoans attacked them in SM North that day.

On February 28, 2002, the trial court rendered its decision100 with the finding that Robert
Michael Alvir, Danilo Feliciano, Jr., Christopher Soliva, Julius Victor Medalla, and Warren
Zingapan were guilty beyond reasonable doubt of murder and attempted murder and were
sentenced to, among other penalties, the penalty of reclusion perpetua.101 The trial court,
however, acquitted Reynaldo Ablanida, Carlo Jolette Fajardo, Gilbert Magpantay, George
Morano, and Raymund Narag.102 The case against Benedict Guerrero was ordered archived by
the court until his apprehension.103 The trial court, m evaluating the voluminous evidence at
hand, concluded that:

After a judicious evaluation of the matter, the Court is of the considered view that of the ten
accused, some were sufficiently identified and some were not. The Court believes that out of the
amorphous images during the pandemonium, the beleaguered victims were able to espy and
identify some of the attackers etching an indelible impression in their memory. In this regard, the
prosecution eyewitnesses were emphatic that they saw the attackers rush towards them wielding
deadly weapons like baseball bats, lead pipes, pieces of wood and bladed ones, and pounce on
their hapless victims, run after them, and being present with one another at the scene of the crime
during the assault. Although each victim had a very strong motive to place his fraternity rivals
permanently behind bars, not one .of them testified against all of them. If the prosecution
eyewitnesses, who were all Sigma Rhoans, were simply bent on convicting Scintilla Juris
members for that matter, they could have easily tagged each and every single accused as a
participant in the atrocious and barbaric assault to make sure that no one else would escape
conviction. Instead, each eyewitness named only one or two and some were candid enough to
say that they did not see who delivered the blows against them.104

Because one of the penalties meted out was reclusion perpetua, the case was brought to this court
on automatic appeal. However, due to the amendment of the Rules on Appeal,105 the case was
remanded to the Court of Appeals.106 In the Court of Appeals, the case had to be re-raffled
several Times107 before it was eventually assigned to Presiding Justice Andres B. Reyes, Jr. for
the writing of the decision.
On December 26, 2010, the Court of Appeals, in a Special First Division of Five, affirmed108
the decision of the Regional Trial Court, with three (3) members concurring109 an one (1)
dissenting.110

The decision of the Court of Appeals was then brought to this court for review.

The issue before this court is whether the prosecution was able to prove beyond reasonable doubt
that accused-appellants attacked private complainants and caused the death of Dennis Venturina.

On the basis, however, of the arguments presented to this court by both parties, the issue may be
further refined, thus:

1. Whether accused-appellants' constitutional rights were violated when the information


against them contained the aggravating circumstance of the use of masks despite the
prosecution presenting witnesses to prove that the masks fell off; and

2. Whether the Regional Trial Court and the Court of Appeals correctly ruled, on the
basis of the evidence, that accused-appellants were sufficiently identified.

An information is sufficient
when the accused is fully
apprised of the charge against
him to enable him to prepare
his defense

It is the argument of appellants that the information filed against them violates their
constitutional right to be informed of the nature and cause of the accusation against them. They
argue that the prosecution should not have included the phrase "wearing masks and/or other
forms of disguise" in the information since they were presenting testimonial evidence that not all
the accused were wearing masks or that their masks fell off.

It is enshrined in our Bill of Rights that "[n]o person shall be held to answer for a criminal
offense without due process of law."111 This includes the right of the accused to be presumed
innocent until proven guilty and "to be informed of the nature and accusation against him."112

Upon a finding of probable cause, an information is filed by the prosecutor against the accused,
in compliance with the due process of the law. Rule 110, Section 1, paragraph 1 of the Rules of
Criminal Procedure provides that:

A complaint or information is sufficient if it states the name of the accused; the designation of
the offense given by the statute; the acts or omissions complained of as constituting the offense;
the name of the offended pary; the approximate date of the commission of the offense; and the
place where the offense was committed.
In People v. Wilson Lab-ea,113 this court has stated that:

The test of sufficiency of Information is whether it enables a person of common understanding to


know the charge against him, and the court to render judgment properly. x x x The purpose is to
allow the accused to fully prepare for his defense, precluding surprises during the trial.114

Contrary to the arguments of the appellants, the inclusion of the phrase "wearing masks and/or
other forms of disguise" in the information does not violate their constitutional rights.

It should be remembered that every aggravating circumstance being alleged must be stated in the
information. Failure to state an aggravating circumstance, even if duly proven at trial, will not be
appreciated as such.115 It was, therefore, incumbent on the prosecution to state the aggravating
circumstance of "wearing masks and/or other forms of disguise" in the information in order for
all the evidence, introduced to that effect, to be admissible by the trial court.

In criminal cases, disguise is an aggravating circumstance because, like nighttime, it allows the
accused to remain anonymous and unidentifiable as he carries out his crimes.

The introduction of the prosecution of testimonial evidence that tends to prove that the accused
were masked but the masks fell off does not prevent them from including disguise as an
aggravating circumstance.116 What is important in alleging disguise as an aggravating
circumstance is that there was a concealment of identity by the accused. The inclusion of
disguise in the information was, therefore, enough to sufficiently apprise the accused that in the
commission of the offense they were being charged with, they tried to conceal their identity.

The introduction of evidence which shows that some of the accused were not wearing masks is
also not violative of their right to be informed of their offenses.

The information charges conspiracy among the accused. Conspiracy presupposes that "the act of
one is the act of all."117 This would mean all the accused had been one in their plan to conceal
their identity even if there was evidence later on to prove that some of them might not have done
so.

In any case, the accused were being charged with the crime of murder, frustrated murder, and
attempted murder. All that is needed for the information to be sufficient is that the elements of
the crime have been alleged and that there are sufficient details as to the time, place, and persons
involved in the offense.

II

Findings of the trial court,


when affirmed by the
appellate court, are entitled
to great weight and credence
As a general rule, the findings of fact by the trial court, when affirmed by the appellate court, are
given great weight and credence on review. The rationale for this was explained in People v.
Daniel Quijada,118 as follows:

Settled is the rule that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has the advantage of
observing the witnesses through the different indicators of truthfulness or falsehood, such as the
angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous
mutter of a reluctant answer or the forthright tone of a ready reply;

or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or
sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full
realization of the solemnity of an oath, the carriage and mien.119

There are, of course, recognized exceptions to this rule. In People v. Leticia Labarias,120 this
court stated that:

It is the policy of this Court to sustain the factual findings of the trial court on the reasonable
assumption that it is in a better position to assess the evidence before it, particularly the
testimonies of the witnesses, who reveal much of themselves by their deportment on the stand.
The exception that makes the rule is where such findings arc clearly arbitrary or erroneous as
when they are tainted with bias or hostility or are so lacking in basis as to suggest that they were
reached without the careful study and perceptiveness that should characterize a judicial
decision.121 (Emphasis supplied)

In criminal cases, the exception gains even more importance since the presumption is always in
favor of innocence. It is only upon proof of guilt beyond reasonable doubt that a conviction is
sustained.

In this case, a total of eleven (11) witnesses for the prosecution and forty-two (42) witnesses for
the defense were put on the stand from 1995 to 2001. In an eighty-three (83)-page decision, the
trial court acquitted six (6) and convicted five (5) of the accused. On the basis of these numbers
alone, it cannot be said that the trial court acted arbitrarily or that its decision was "so lacking in
basis" that it was arrived at without a judicious and exhaustive study of all the evidence
presented.

Inasmuch, however, as the trial court's findings hold great persuasive value, there is also nothing
that precludes this court from coming to its own conclusions based on an independent review of
the facts and the evidence on record.

The accused were sufficiently


identified by the witnesses for
the prosecution

The trial court, in weighing all the evidence on hand, found the testimonies of the witnesses for
the prosecution to be credible. In its decision, the trial court stated that:
x x x. Although each victim had a very strong motive to place his fraternity rivals permanently
behind bars, not one testified against all of them. If the prosecution eyewitnesses, who were all
Sigma Rhoans, were simply bent on convicting Scintilla Juris members for that matter, they
could have easily tagged each and every accused as a participant in the atrocious and barbaric
assault to make sure no one would escape conviction. Instead, each eyewitness named only one
or two and some were candid enough to say that they did not see who delivered the blows against
them.

Thus, the prosecution witnesses, Ernest Paulo Tan, Dennis Gaio and Darwin Asuncion, testified
to have seen it all but they could not, and did not, disclose any name. Lachica, on the other hand,
said that he did not have the opportunity to see and identify the person who hit him in the back
and inflicted a two-inch cut. His forearm was also hit by a lead pipe but he did not see who did it.
Natalicio, one of the other three who were hospitalized, was severely beaten by three waves of
attackers totalling more than 15 but he could only name 3 of them. He added, however, that he
would be able to recognize those he saw if he would see them again. Of them, Mangrobang
pointed to at least 5 but he stressed that he did not see Zingapan, Soliva, Guerrero, Del Rosario,
Daraoay, Denoista, and Penalosa during the onslaught. Gaston could have named any of the
accused as the one who repeatedly hit him with a heavy pipe and stabbed him but he frankly said
their faces were covered. Like Natalicio, Fortes was repeatedly beaten by several groups but did
not name any of the accused as one of those who attacked him. The persons he identified were
those leading the pack with one of them as the assailant of Venturina, and the two others who he
saw standing while he was running away. He added that he saw some of the accused during the
attack but did not know then their names.122 (Emphasis supplied)

We agree.

The trial court correctly held that "considering the swiftness of the incident,"123 there would be
slight inconsistencies in their statements. In People v. Adriano Cabrillas,124 it was previously
observed that:

It is perfectly natural for different witnesses testifying on the occurrence of a crime to give
varying details as there may be some details which one witness may notice while the other may
not observe or remember. In fact, jurisprudence even warns against a perfect dovetailing of
narration by different witnesses as it could mean that their testimonies were prefabricated and
rehearsed.125 (Emphasis supplied)

According to their testimonies, Lachica was able to identify Alvir, Zingapan, and Medalla;126

Natalicio was able to identify Medalla, Zingapan, and Soliva;127 and Fortes was able to identify
Feliciano, Medalla, and Zingapan.128 Their positive identification was due to the fact that they
either wore no masks or that their masks fell off.

It would be in line with human experience that a victim or an eyewitness of a crime would
endeavor to find ways to identify the assailant so that in the event that he or she survives, the
criminal could be apprehended. It has also been previously held that:
It is the most natural reaction for victims of criminal violence to strive to see the looks and faces
of their assailants and observe the manner in which the crime was committed. Most often the
face of the assailant and body movements thereof, creates a lasting impression which cannot be
easily erased from their memory.129

In the commotion, it was more than likely that the masked assailants could have lost their masks.
It had been testified by the victims that some of the assailants were wearing masks of either a
piece of cloth or a handkerchief and that Alvir,130 Zingapan,131 Soliva,132 and Feliciano133
had masks on at first but their masks fell off and hung around their necks.

Equally telling was the testimony of defense witness Frisco Capilo during cross-examination
who observed that some of the attackers were wearing masks and some were not, thus:

Q Mr. Capilo, do you know this Scintilla Juris Fraternity?

A No, sir.

Q During the incident of December 8, 1994, there were a lot of people eating in the Beach House
Canteen, and then running towards different directions, is it not?

A Yes, sir.

Q And some people were wearing masks and some were not?

A Yes, sir.134

While the attack was swift and sudden, the victims would have had the presence of mind to take
a look at their assailants if they were identifiable. Their positive identification, in the absence of
evidence to the contrary, must be upheld to be credible.

It has been argued that the trial court did not give Mangrobang's testimony credence while
Gaston's testimony was found to be "hazy." This argument is unmeritorious.

It should be noted that it was the trial court itself that stated that the acquittal of the Scintilla Juris
members identified by Mangrobang "should not be. misinterpreted to mean that the tt:'.stimony
of Mangrobang was an absolute fabrication."135 The court went on to state that they "were
exonerated merely because they were accorded the benefit of the doubt as their identification by
Mangrobang, under tumultuous and chaotic circumstances were [sic] not corroborated and their
alibis, not refuted."136 There was, therefore, no basis to say that Mangrobang was not credible;
it was only that the evidence presented was not strong enough to overcome the presumption of
innocence.

Gaston's testimony, on the other hand, was considered "hazy"137 by the trial court only with
regard to his identification of Zingapan's companion. Gaston testified that he saw Zingapan with
Morano, with Zingapan moving and Morano staying in place. Fortes, however, testified that both
Zingapan and Morano were running after him. Lachica also testified that it was Medalla, not
Morano, who was with Zingapan. Because of this confusion, the trial court found that there was
doubt as to who was really beside Zingapan. The uncertainty resulted into an acquittal for
Morano. Despite this, the court still did not" impute doubt in their testimonies that Zingapan was
present at the scene.

Be that as it may, the acquittals made by the trial court further prove that its decision was
brought about only upon a thorough examination of the evidence presented: It accepted that there
were inconsistencies in the testimonies of the victims but that these were minor and did not affect
their credibility. It ruled that "[s]uch inconsistencies, and even probabilities, are not unusual 'for
there is no person with perfect faculties or senses."'138

Evidence as part of the res


gestae may be admissible but
have little persuasive value in
this case

According to the testimony of U.P. Police Officer Salvador,139 when he arrived at the scene, he
interviewed the bystanders who all told him that they could not recognize the attackers since they
were all masked. This, it is argued, could be evidence that could be given as part of the res
gestae.

As a general rule, "[a] witness can testify only to the facts he knows of his personal knowledge;
that is, which are derived from his own perception, x x x."140 All other kinds of testimony are
hearsay and are inadmissible as evidence. The Rules of Court, however, provide several
exceptions to the general rule, and one of which is when the evidence is part of res gestae, thus:

Section 42. Part of res gestae. - Statements made by a person while a starting occurrence is
taking place or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as part of
the res gestae.141

In People v. Rodrigo Salafranca,142 this court has previously discussed the admissibility of
testimony taken as part of res gestae, stating that:

A declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence
as an exception to the hearsay rule when the following requisites concur, to wit: (a) the principal
act, the res gestae, is a startling occurrence; (b) the statements are made before the declarant had
time to contrive or devise; and (c) the statements must concern the occurrence in question and its
immediately attending circumstances.

xxxx

The term res gestae has been defined as "those circumstances which are the undersigned
incidents of a particular litigated act and which are admissible when illustrative of such act." In a
general way, res gestae refers to the circumstances, facts, and declarations that grow out of the
main fact and serve to illustrate its character and are so spontaneous and contemporaneous with
the main fact as to exclude the idea of deliberation and fabrication. The rule on res gestae
encompasses the exclamations and statements made by either the participants, victims, or
spectators to a crime immediately before, during, or immediately after the commission of the
crime when the circumstances are such that the statements were made as a spontaneous reaction
or utterance inspired by the excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement. The test of admissibility of evidence as
a part of the res gestae is, therefore, whether the act, declaration, or exclamation is so intimately
interwoven or connected with the principal fact or event that it characterizes as to be regarded as
a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose
to manufacture testimony.143

There is no doubt that a sudden attack on a group peacefully eating lunch on a school campus is
a startling occurrence. Considering that the statements of the bystanders were made immediately
after the startling occurrence, they are, in fact, admissible as evidence given in res gestae.

In People v. Albarido,144 however, this court has stated that "in accord to ordinary human
experience:"

x x x persons who witness an event perceive the same from their respective points of reference.
Therefore, almost always, they have different accounts of how it happened. Certainly, we cannot
expect the testimony of witnesses to a crime to be consistent in all aspects because different
persons have different impressions and recollections of the same incident. x x x145

(Emphasis supplied)

The statements made by the bystanders, although admissible, have little persuasive value since
the bystanders could have seen the events transpiring at different vantage points and at different
points in time. Even Frisco Capilo, one of the bystanders at the time of the attack, testified that
the attackers had their masks on at first, but later on, some remained masked and some were
unmasked.

When the bystanders' testimonies are weighed against those of the victims who witnessed the
entirety of the incident from beginning to end at close range, the former become merely
corroborative of the fact that an attack occurred. Their account of the incident, therefore, must be
given considerably less weight than that of the victims.

The belated identification by


the victims do not detract from
their positive identification of
the appellants

It is argued that the fact that the victims stayed silent about the incident to the U.P. Police or the
Quezon City Police but instead executed affidavits with the National Bureau of Investigation
four (4) days after the incident gives doubt as to the credibility of their testimonies.
U.P. Police Officer Romeo Cabrera146 testified that on their way to the U.P. Infirmary, he
interviewed the victims who all told him they could not recognize the attackers because they
were all wearing masks. Meanwhile, Dr. Mislang147 testified to the effect that when she asked
Natalicio who attacked them, Natalicio answered that he did not know because they were
masked.

It must be remembered that the parties involved in this case belong to rival fraternities. While
this court does not condone their archaic and oftentimes barbaric traditions, it is conceded that
there are certain practices that are unique to fraternal organizations.

It is quite possible that at this point in time, they knew the identities of their attackers but chose
not to disclose it without first conferring with their other fraternity brothers. This probability is
bolstered by the actions of Sigma Rho after the incident, which showed that they confronted the
members of Scintilla Juris in SM North. Because of the tenuous relationship of rival fraternities,
it would not have been prudent for Sigma Rho to retaliate against the wrong fraternity.

Their act of not disclosing the correct information to the U.P. Police or to Dr. Mislang does not
make the police officer or the doctor's testimonies more credible than that of the victims. It
should not be forgotten that the victims actually witnessed the entire incident, while Officer
Salvador, Officer Cabrera, and Dr. Mislang were merely relaying secondhand information.

The fact that they went to the National Bureau of Investigation four (4) days after the incident
also does not affect their credibility since most of them had been hospitalized from their injuries
and needed to recover first.

Since a fraternity moves as one unit, it would be understandable that they decided to wait until
all of them were well enough to go to the National Bureau of Investigation headquarters in order
to give their statements.

Seniority is also often the norm in fraternities. It was upon the advice of their senior "brads" and
their legal counsel that they executed their sworn statements before the National Bureau of
Investigation four (4) days after the incident.

The decision to report the incident to the National Bureau of Investigation instead of to the U.P.
Police was the call of their legal counsel who might have deemed the National Bureau of
Investigation more equipped to handle the investigation. This does not, however, affect the
credibility of the witnesses since they were merely following the legal advice of their counsel.

Indeed, there is reason to believe that the National Bureau of Investigation is better equipped
than the U.P. Police to handle the investigation of the case. As stated in the U.P. College of
Economics website:

The UP Diliman Police (UPDP) is tasked with maintaining campus security. Their station is
located in front of the College of Architecture.
The primary missions of the UPDP are to maintain peace and order, secure and protect lives and
property, enforce basic laws, applicable Quezon City Ordinances, and University Rules and
Regulations including policies and standards; and to perform such other functions relative to the
general safety and security of the students, employees, and residents in the U.P. Diliman
Campus. x x x.148 (Emphasis supplied)

It can be seen that the U.P. Police is employed by U.P. primarily for campus security. They are
by no means an actual police force that is equipped to handle a full-blown murder investigation.
Fraternity-related violence in U.P. has also increasingly become more frequent, which might
possibly have desensitized the U.P. Police in such a way that would prevent their objectivity in
the conduct of their investigations. The victims' reliance on the National Bureau of Investigation,
therefore, is understandable.

III

Alibi cannot prevail over the


positive identification of the
victim

It is settled that the defense of alibi cannot prevail over the positive identification of the
victim.149 In People v. Benjamin Peteluna,150 this court stated that:

It is a time-honored principle that the positive identification of the appellant by a witness


destroys the defense of alibi and denial. Thus:

x x x. It is well-entrenched that alibi and denial are inherently weak and have always been
viewed with disfavor by the courts due to the facility with which they can be concocted. They
warrant the least credibility or none at all and cannot prevail over the positive identification of
the appellant by the prosecution witnesses. For alibi to prosper, it is not enough to prove that
appellant was somewhere else when the crime was committed; he must also demonstrate that it
was physically impossible for him to have been at the scene of the crime at the time of its
commission. Unless substantiated by clear and convincing proof, such defense is negative, self-
serving, and undeserving of any weight in law. Denial, like alibi, as an exonerating
justification[,] is inherently weak and if uncorroborated regresses to blatant impotence. Like
alibi, it also constitutes self-serving negative evidence which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who testify on affirmative
matters.151

In this case, the victims were able to positively identify their attackers while the accused-
appellants merely offered alibis and denials as their defense. The credibility of the victims was
upheld by both the trial court and the appellate court while giving little credence to the accused-
appellants' alibis. There is, thus, no reason to disturb their findings.

Accused-appellants were
correctly charged with
murder, and there was
treachery in the commission
of the crime

According to the provisions of Article 248 of the Revised Penal Code, the accused-appellants
were correctly charged with murder. Article 248 states:

ART. 248. Murder.-Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense, or of means or persons to insure or afford impunity;

xxxx

It is undisputed that on December 8, 1994, a group of men armed with lead pipes and baseball
bats attacked Dennis Venturina and his companions, which resulted in Venturina's death.

As correctly found by the trial court and the appellate court, the offense committed against
Dennis Venturina was committed by a group that took advantage of its superior strength and
with the aid of armed men. The appellate court, however, incorrectly ruled out the presence of
treachery in the commission of the offense.

It has been stated previously by this court that:

[T]reachery is present when the offender commits any of the crimes against persons, employing
means, methods, or forms in the execution, which tend directly and specially to insure its
execution, without risk to the offender arising from the defense which the offended party might
make.152

Similarly, in People v. Leozar Dela Cruz,153 this court stated that:

There is treachery when the offender commits any of the crimes against persons, employing
means, methods, or forms in the execution, which tend directly and specially to insure its
execution, without risk to the offender arising from the defense which the offended party might
make. The essence of treachery is that the attack comes without a warning and in a swift,
deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no
chance to resist or escape. For treachery to be considered, two elements must concur: (1) the
employment of means of execution that gives the persons attacked no opportunity to defend
themselves or retaliate; and (2) the means of execution were deliberately or consciously
adopted.154 (Emphasis supplied)

The appellate court, in affirming the conviction of the accused-appellants, ruled that contrary to
the findings of the trial court, there was no treachery involved. In particular, they ruled that
although the attack was sudden and unexpected, "[i]t was done in broad daylight with a lot of
people who could see them"155 and that "there was a possibility for the victims to have fought
back or that the people in the canteen could have helped the victims."156

This reasoning is clearly erroneous. The victims in this case were eating lunch on campus. They
were not at a place where they would be reasonably expected to be on guard for any sudden
attack by rival fraternity men.

The victims, who were unarmed, were also attacked with lead pipes and baseball bats. The only
way they could parry the blows was with their arms. In a situation where they were unnamed and
outnumbered, it would be impossible for them to fight back against the attackers. The attack also
happened in less than a minute, which would preclude any possibility of the bystanders being
able to help them until after the incident.

The swiftness and the suddenness of the attack gave no opportunity for the victims to retaliate or
even to defend themselves. Treachery, therefore, was present in this case.

The presence of conspiracy


makes all of the accused-
appellants liable for murder
and attempted murder

In the decision of the trial court, all of the accused-appellants were found guilty of the murder of
Dennis Venturina and the attempted murder of Mervin Natalicio, Cesar Mangrobang, Jr. Leandro
Lachica, Arnel Fortes, and Cristobal Gaston, Jr. The appellate court, however, modified their
liabilities and found that the accused-appellants were guilty of attempted murder only against
Natalicio and Fortes, and not against Mangrobang, Lachica, and Gaston.

It is the appellate court's reasoning that because Lachica and Mangrobang "were no longer
chased by the attackers,"157 it concluded that accused-appellants "voluntary desisted from
pursuing them and from inflicting harm to them, which shows that they did not have the intent to
do more than to make them suffer pain by slightly injuring them."158 It also pointed out that the
wound inflicted on Gaston "was too shallow to have been done with an intent to kill."159

Thus, it concluded that the accused-appellants would have been guilty only of slight physical
injuries.

This is erroneous.

It should be remembered that the trial court found that there was conspiracy among the accused-
appellants160 and the appellate court sustainedthis finding.161

Conspiracy, once proven, has the effect of attaching liability to all of the accused, regardless of
their degree of participation, thus: Once an express or implied conspiracy is proved, all of the
conspirators are liable as co-principals regardless of the extent and character of their respective
active participation in the commission of the crime or crimes perpetrated in furtherance of the
conspiracy because in contemplation of law the act of one is the act of all. The foregoing rule is
anchored on the sound principle that "when two or more persons unite to accomplish a criminal
object, whether through the physical volition of one, or all, proceeding severally or collectively,
each individual whose evil will actively contributes to the wrong-doing is in law responsible for
the whole, the same as though performed by himself alone." Although it is axiomatic that no one
is liable for acts other than his own, "when two or more persons agree or conspire to commit a
crime, each is responsible for all the acts of the others, done in furtherance of the agreement or
conspiracy." The imposition of collective liability upon the conspirators is clearly explained in
one case where this Court held that

... it is impossible to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement ... The crime must therefore in view
of the solidarity of the act and intent which existed between the ... accused, be regarded as the act
of the band or party created by them, and they are all equally responsible

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by
reason of the conspiracy, and the court shall not speculate nor even investigate as to the actual
degree of participation of each of the perpetrators present at the scene of the crime. x x x.162
(Emphasis supplied)

The liabilities of the accused-appellants m this case arose from a single incident wherein the
accused-appellants were armed with baseball bats and lead pipes, all in agreement to do the
highest amount of damage possible to the victims. Some were able to run away and take cover,
but the others would fall prey at the hands of their attackers. The intent to kill was already
present at the moment of attack and that intent was shared by all of the accused-appellants alike
when the presence of conspiracy was proven. It is, therefore, immaterial to distinguish between
the seriousness of the injuries suffered by the victims to determine the respective liabilities of
their attackers. What is relevant is only as to whether the death occurs as a result of that intent to
kill and whether there are qualifying, aggravating or mitigating circumstances that can be
appreciated.

The appellate court, therefore, erred in finding the accused-appellants guilty only of slight
physical injuries. It would be illogical to presume that despite the swiftness and suddenness of
the attack, the attackers intended to kill only Venturina, Natalicio, and Fortes, and only intended
to injure Lachica, Mangrobang, and Gaston. Since the intent to kill was evident from the moment
the accused-appellants took their first swing, all of them were liable for that intent to
kill.1wphi1

For this reason, the accused-appellants should be liable for the murder of Dennis Venturina and
the attempted murder of Mervin Natalicio, Cesar Mangrobang, Jr., Leandro Lachica, Arnel
Fortes, and Cristobal Gaston, Jr.

A Final Note
It is not only the loss of one promising young life; rather, it is also the effect on the five other
lives whose once bright futures are now put in jeopardy because of one senseless act of bravado.
There is now more honor for them to accept their responsibility and serve the consequences of
their actions. There is, however, nothing that they can do to bring back Dennis Venturina or fully
compensate for his senseless and painful loss.

This is not the first fraternity-related case to come to this court; neither will it be the last. Perhaps
this case and many cases like it can empower those who have a better view of masculinity: one
which valorizes courage, sacrifice and honor in more life-saving pursuits.

"Giting at dangal" are words of the anthem of the University of the Philippines. It colors the
stories of many who choose to expend their energy in order that our people will have better lives.
Fraternity rumbles are an anathema, an immature and useless expenditure of testosterone. It
fosters a culture that retards manhood. It is devoid of "giting at dangal."

This_ kind of shameful violence must stop.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR N). 01158 dated November
26, 2010 is AFFIRMED insofar as the accused-appellants Danilo Feliciano, Jr., Julius Victor
Medalla, Christopher Soliva, Warren L. Zingapan, and Robert Michael Beltran Alvir are found
GUILTY beyond reasonable doubt of Murder in. Criminal Case No. Q95-61133 with the
MODIFICATION that they be fouhd GUILTY beyond reasonable doubt of Attempted Murder in
Criminal Case Nos. Q95-61136, Q95-61135, Q95-61134, Q95-61138, and Q95-61137.

SO ORDERED.

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

People of the Philippines vs Villarico

THIRD DIVISION

G.R. No. 158362 April 4, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
GILBERTO VILLARICO, SR. @ "BERTING", GILBERTO VILLARICO, JR., JERRY
RAMENTOS, and RICKY VILLARICO, Accused-Appellants.

DECISION

BERSAMIN, J:
The identification of the accused as the person responsible for the imputed crime is the primary
duty of the State in every criminal prosecution. Such identification, to be positive, need not
always be by direct evidence from an eyewitness, for reliable circumstantial evidence can
equally confirm it as to overcome the constitutionally presumed innocence of the accused.

On appeal by the accused is the decision of the Court of Appeals (CA) promulgated on June 6,
2003,1 finding Gilberto Villarico, Sr., Gilberto Villarico, Jr., Jerry Ramentos,2 and Ricky
Villarico guilty of murder for the killing of Haide Cagatan, and imposing the penalty of reclusion
perpetua on each of them, thereby modifying the decision of the Regional Trial Court (RTC),
Branch 16, in Tangub City that had pronounced them guilty of homicide aggravated by
dwelling.3

With treachery having attended the killing, we affirm the CA but correct the civil liability to
accord with pertinent law and jurisprudence.

Antecedents

On October 7, 1999, an information for murder was filed in the Regional Trial Court in Misamis
Occidental (RTC) against all the accused,4 the accusatory portion of which reads:

That on or about August 8, 1999, at about 7:50 oclock in the morning at Barangay Bolinsong,
Municipality of Bonifacio, Province of Misamis Occidental, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill, armed with a short firearms (sic), did then and
there willfully, unlawfully, feloniously suddenly and treacherously shoot HAIDE CAGATAN at
the back penetrating through the neck which cause(d) the instant death of said victim and that he
had no chance to avoid or defend himself from the attack.

CONTRARY TO LAW.

All the accused pleaded not guilty at their December 15, 1999 arraignment.

Version of the Prosecution

At around 7:50 p.m. on August 8, 1999, Haide was busy preparing dinner in the kitchen of his
familys residence in Bolinsong, Bonifacio, Misamis Occidental. The kitchen, located at the rear
of the residence, had a wall whose upper portion was made of three-feet high bamboo slats (sa-
sa) and whose lower portion was also made of bamboo slats arranged like a chessboard with
four-inch gaps in between. At that time, Haides sister-in-law Remedios Cagatan was attending
to her child who was answering the call of nature near the toilet. From where she was, Remedios
saw all the accused as they stood at the rear of the kitchen aiming their firearms at the door
Ricky Villarico was at the left side, and Gilberto, Jr. stood behind him, while Gilberto, Sr. was at
the right side, with Ramentos behind him. When Gilberto, Jr. noticed Remedios, he pointed his
gun at her, prompting Remedios to drop to the ground and to shout to Lolita Cagatan, her
mother-in-law and Haides mother: Nay, Nay tawo Nay (Mother, mother, there are people
outside, mother). At that instant, Remedios heard three gunshots.5
Francisco Cagatan, the father of Haide, also heard the gunshots just as he was coming out of the
toilet, making him instinctively jump into a hole, from where he was able to see and recognize
Gilberto, Sr., Gilberto, Jr. and Ricky who were then standing by the kitchen door. They were
aiming their guns upward, and soon after left together with Ramentos.6

Lolita also heard the gunshots while she was in the sala. She recalled that Haide then came
towards her from the kitchen, asking for help and saying: Tabang kay gipusil ko ni Berting (I was
shot by Berting).7 At that, she and Remedios brought the wounded Haide to Clinica Ozarraga,
where he was treated for gunshot wounds on his left scapular region (back of left shoulder) and
right elbow. He succumbed shortly thereafter due to hypovolemic shock or massive loss of
blood.8

Version of the Defense

The accused denied the accusations and each proffered an alibi.

Gilberto, Sr. claimed that he was sleeping in his home with a fever when he heard a gunshot. He
insisted that he learned that Haide had been shot only in the next morning.9 His denial and alibi
were corroborated by his wife Carmelita10 and his daughter Jersel.11

Gilberto, Jr. testified that on the day of the incident, he went to Liloan, Bonifacio, Misamis
Occidental at around 5:00 p.m. to visit his girlfriend together with Charlie Bacus and Randy
Hernan. They stayed there until 9:00 p.m. Thereafter, they proceeded to Tiaman to attend the
wake for one Helen Oligario Cuizon, and were there for an hour. They then returned to
Bolinsong and spent the night in the house of Randy. It was only in the morning that Randys
father informed them that Haide had been shot. 12

Ricky declared that he stayed throughout the whole evening of August 8, 1999 in the house of
his aunt Flordeliza.13 Myrna Hernan, a neighbor of Flordeliza, corroborated his testimony.14

Ramentos alleged that he was drinking tuba with others at the store owned by Cinderella Bacus
at the time of the shooting; and that he went home at around 9:00 p.m. after his group was done
drinking. He did not recall hearing any gunshots while drinking and came to know of the
shooting only from a certain Anecito Duyag on the following morning.1avvphi1

To discredit the testimony about Haide being able to identify his assailants, the Defense
presented Peter Ponggos, who narrated that he had been on board a motorcycle (habal-habal)
when Lolita and Remedios asked for his help; and that he then aided Lolita and Remedios in
bringing Haide to the hospital. According to Peter, he asked Haide who had shot him, but Haide
replied that there had been only one assailant whom he did not recognize.15

Ruling of the RTC

After trial, the RTC convicted the four accused of homicide aggravated by dwelling, disposing:16
WHEREFORE, premises considered, the Court finds all the accused guilty beyond reasonable
doubt of the crime of Homicide, with one aggravating circumstance of dwelling, and applying
the Indeterminate Sentence Law, hereby sentences each one of them to a penalty of
imprisonment ranging from 6 years and 1 day, as its minimum to 17 years, 4 months and 1 day,
as its maximum, to suffer the accessory penalties provided for by law, to pay jointly and
solidarily, the heirs of the victim P50,000.00, as civil liability and to pay the costs.

Let all the accused be credited of the time that they were placed in jail under preventive
imprisonment, applying the provisions of Art. 29 of the Revised Penal Code, as amended.

SO ORDERED.

The RTC accorded faith to the positive identification of the accused by the Prosecutions
witnesses, and disbelieved their denial and alibis due to their failure to show the physical
improbability for them to be at the crime scene, for the distances between the crime scene and
the places where the accused allegedly were at the time of the commission of the crime were
shown to range from only 100 to 700 meters.17 The RTC found, however, that the Prosecution
was not able to prove treachery because:

xxx The medical report of "gunshot wound left scapular region" which the doctor interpreted to
be at the back of the left shoulder is not sufficient to prove treachery, it being susceptible to 2
different interpretations: one: that victim had his back towards his assailants, and two: that he
was actually facing them but he turned around for cover upon seeing the armed "group of
Berting". The Court is inclined to believe the second interpretation because the victim was able
to see and identify his assailants. Two prosecution witnesses testified that the victim identified to
them who shot him.18

Ruling of the CA

On intermediate review, the CA modified the RTCs decision, holding instead that murder was
established beyond reasonable doubt because the killing was attended by treachery, viz: 19

WHEREFORE, the appealed Decision is hereby MODIFIED. Pursuant to Section 13, paragraph
2 of Rule 124 of the Rules of Criminal Procedure, We render JUDGMENT without entering it,
as follows:

1. We find all accused guilty beyond reasonable doubt of MURDER. Each accused is
hereby SENTENCED TO SUFFER the penalty of reclusion perpetua.

2. The Division Clerk of Court is hereby directed to CERTIFY and ELEVATE the entire
records of this case to the Supreme Court for review.

SO ORDERED.20

Citing People v. Valdez,21 the CA explained that the attendance of treachery did not depend on
the position of the victim at the time of the attack, for the essence of treachery was in the element
of surprise the assailants purposely adopted to ensure that the victim would not be able to defend
himself. Considering that the accused had purposely positioned themselves at night outside the
door to the kitchen from where they could see Haide, who was then busy preparing dinner,
through the holes of the kitchen wall, the CA concluded that Haide was thus left unaware of the
impending assault against him.

Issues

In this recourse, the accused raise the following errors:

THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING ACCUSED-


APPELLANTS OF MURDER DESPITE FAILURE OF THE PROSECUTION TO
PROVE THE IDENTITY OF THE ASSAILANT AS WELL AS ACCUSED-
APPELLANTS GUILT BEYOND REASONABLE DOUBT.

II

THE COURT OF APPEALS GRAVELY ERRED IN CONSIDERING THE


QUALIFYING CIRCUMSTANCE OF TREACHERY, ON THE ASSUMPTION THAT
INDEED ACCUSED-APPELLANTS ARE GUILTY.

The accused contend that the Prosecution witnesses failed to positively identify them as the
persons who had actually shot Haide; that treachery was not attendant because there was no
proof showing that they had consciously and deliberately adopted the mode of attacking the
victim; and that assuming that they committed the killing, they could only be convicted of
homicide.

The decisive queries are, therefore, the following:

(a) Should an identification, to be positive, have to be made by a witness who actually


saw the assailants?

(b) Was treachery attendant in the killing of Haide as to qualify the crime as murder?

Ruling

We affirm the finding of guilt for the crime of murder, but modify the civil liability.

1.

Positive identification refers to


proof of identity of the assailant
The first duty of the prosecution is not to prove the crime but to prove the identity of the
criminal, for, even if the commission of the crime can be established, there can be no conviction
without proof of the identity of the criminal beyond reasonable doubt.22 In that regard, an
identification that does not preclude a reasonable possibility of mistake cannot be accorded any
evidentiary force.23 The intervention of any mistake or the appearance of any weakness in the
identification simply means that the accuseds constitutional right of presumption of innocence
until the contrary is proved is not overcome, thereby warranting an acquittal,24 even if doubt may
cloud his innocence.25 Indeed, the presumption of innocence constitutionally guaranteed to every
individual is forever of primary importance, and every conviction for crime must rest on the
strength of the evidence of the State, not on the weakness of the defense.26

The accused contend that the Prosecution witnesses did not actually see who had shot Haide;
hence, their identification as the malefactors was not positively and credibly made.

We cannot uphold the contention of the accused.

The established circumstances unerringly show that the four accused were the perpetrators of the
fatal shooting of Haide. Their identification as his assailants by Remedios and Francisco was
definitely positive and beyond reasonable doubt. Specifically, Remedios saw all the four accused
near the door to the kitchen immediately before the shots were fired and recognized who they
were. She even supplied the detail that Gilberto, Jr. had trained his firearm towards her once he
had noticed her presence at the crime scene. On his part, Francisco attested to seeing the accused
near the door to the kitchen holding their firearms right after he heard the gunshots, and also
recognized them.

The collective recollections of both Remedios and Francisco about seeing the four accused
standing near the door to the kitchen immediately before and after the shooting of Haide inside
the kitchen were categorical enough, and warranted no other logical inference than that the four
accused were the persons who had just shot Haide. Indeed, neither Remedios nor Francisco
needed to have actually seen who of the accused had fired at Haide, for it was enough that they
testified that the four armed accused: (a) had strategically positioned themselves by the kitchen
door prior to the shooting of Haide; (b) had still been in the same positions after the gunshots
were fired; and (c) had continuously aimed their firearms at the kitchen door even as they were
leaving the crime scene.

The close relationship of Remedios and Francisco with the victim as well as their familiarity
with the accused who were their neighbors assured the certainty of their identification as Haides
assailants. In Marturillas v. People,27 the Court observed that the familiarity of the witness with
the assailant erased any doubt that the witness could have erred; and noted that a witness related
to the victim had a natural tendency to remember the faces of the person involved in the attack
on the victim, because relatives, more than anybody else, would be concerned with seeking
justice for the victim and bringing the malefactor before the law.28

Moreover, the following portions of Lolitas testimony show that Haide himself recognized and
identified his assailants, to wit:
Atty. Fernandez:

Q. And where were you at that time when he was shot?

A. In the sala.

Q. Could you possibly tell the Honorable Court what actually took place when your son was
shot?

A. He came from the kitchen at that time when I heard gunreports, he said "Nay" help me
because I was shot by Berting.29

xxx

Atty. Anonat:

Q. And that affidavit was executed by you at the Bonifacio Police Station?

A. Yes.

xxx

Q. And you affirm to the truth of what you have stated in this affidavit?

A. Yes.

Q. On question No. 7 you were asked in this manner "Giunsa man nimo pagkasayod nga sila
maoy responsible sa kamatayon sa imong anak? How do you know that they were responsible
(for) the death of your son? And your answer is this "Tungod kay ang biktima nakasulti pa man
sa wala pa siya namatay ug ang iyang pulong mao nga TABANG NAY KAY GIPUSIL KO
NILA NI BERTING ug nasayod ako nga sila gumikan sa akong mga testigos." which translated
into English Because the victim was able to talk before he died and the words which he told me
help me Nay I am shot by the group of Berting and I know this because of my witnesses. 30

xxx

The statement of Haide to his mother that he had just been shot by the group of Berting uttered
in the immediate aftermath of the shooting where he was the victim was a true part of the res
gestae. The statement was admissible against the accused as an exception to the hearsay rule
under Section 42, Rule 130 of the Rules of Court, which provides:

Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as part of
the res gestae. (36 a)
The term res gestae refers to "those circumstances which are the undesigned incidents of a
particular litigated act and which are admissible when illustrative of such act."31 In a general
way, res gestae includes the circumstances, facts, and declarations that grow out of the main fact
and serve to illustrate its character and which are so spontaneous and contemporaneous with the
main fact as to exclude the idea of deliberation and fabrication.32 The rule on res gestae
encompasses the exclamations and statements made by either the participants, victims, or
spectators to a crime immediately before, during, or immediately after the commission of the
crime when the circumstances are such that the statements were made as a spontaneous reaction
or utterance inspired by the excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement.33

The test of admissibility of evidence as a part of the res gestae is whether the act, declaration, or
exclamation is so intimately interwoven or connected with the principal fact or event that it
characterizes as to be regarded a part of the principal fact or event itself, and also whether it
clearly negatives any premeditation or purpose to manufacture testimony.34 A declaration or an
utterance is thus deemed as part of the res gestae that is admissible in evidence as an exception to
the hearsay rule when the following requisites concur: (a) the principal act, the res gestae, is a
startling occurrence; (b) the statements were made before the declarant had time to contrive or
devise; and (c) the statements must concern the occurrence in question and its immediately
attending circumstances.35

We find that the requisites concurred herein. Firstly, the principal act the shooting of Haide
was a startling occurrence. Secondly, his statement to his mother about being shot by the group
of Berting was made before Haide had time to contrive or to devise considering that it was
uttered immediately after the shooting. And, thirdly, the statement directly concerned the
startling occurrence itself and its attending circumstance (that is, the identities of the assailants).
Verily, the statement was reliable as part of the res gestae for being uttered in spontaneity and
only in reaction to the startling occurrence.

In the face of the positive identification of all the four accused, it did not matter whether only
one or two of them had actually fired the fatal shots. Their actions indicated that a conspiracy
existed among them. Indeed, a conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.36 Direct proof of a
previous agreement among the accused to commit the crime is not necessary,37 for conspiracy
may be inferred from the conduct of the accused at the time of their commission of the crime that
evinces a common understanding among them on perpetrating the crime.38 Thus, the concerted
acts of the four manifested their agreement to kill Haide, resulting in each of them being guilty of
the crime regardless of whether he actually fired at the victim or not. It is axiomatic that once
conspiracy is established, the act of one is the act of all;39 and that all the conspirators are then
liable as co-principals.40

But did not the fact that the name Berting without any surname being too generic open the
identification of the accused as the assailants to disquieting doubt about their complicity?

We hold that there was no need for a surname to be attached to the nickname Berting in order to
insulate the identification by Haide from challenge. The victims res gestae statement was only
one of the competent and reliable pieces of identification evidence. As already shown, the
accused were competently incriminated also by Remedios and Francisco in a manner that
warranted the logical inference that they, and no others, were the assailants. Also, that Berting
was the natural nickname for a person whose given name was Gilberto, like herein accused
Gilberto, Sr. and Gilberto, Jr., was a matter of common knowledge in the Philippines. In fine, the
pieces of identification evidence, including Haides res gestae statement, collaborated to render
their identification unassailable.

Relevantly, the Court has distinguished two types of positive identification in People v.
Gallarde,41 namely: (a) that by direct evidence, through an eyewitness to the very commission of
the act; and (b) that by circumstantial evidence, such as where the accused is last seen with the
victim immediately before or after the crime. The Court said:

xxx Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually seen the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as for instance when
the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification,
which forms part of circumstantial evidence, which, when taken together with other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is
that the accused is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the
exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it
is basic and elementary that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the
commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion
and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity
of the accused on the absence of direct evidence, then felons would go free and the community
would be denied proper protection.42

To conclude, the identification of a malefactor, to be positive and sufficient for conviction, does
not always require direct evidence from an eyewitness; otherwise, no conviction will be possible
in crimes where there are no eyewitnesses. Indeed, trustworthy circumstantial evidence can
equally confirm the identification and overcome the constitutionally presumed innocence of the
accused.

Faced with their positive identification, the four accused had to establish convincing defenses.
They opted to rely on denial and their respective alibis, however, but both the RTC and the CA
rightly rejected such defenses.

The rejection was warranted. Long judicial experience instructs that their denial and alibis, being
too easy to invent, could not overcome their positive identification by credible Prosecution
witnesses whose motives for the identification were not shown to be ill or vile. Truly, a positive
identification that is categorical, consistent, and devoid of any showing of ill or vile motive on
the part of the Prosecution witnesses always prevails over alibi and denial that are in the nature
of negative and self-serving evidence.43 To be accepted, the denial and alibi must be
substantiated by clear and convincing evidence establishing not only that the accused did not
take part in the commission of the imputed criminal act but also that it was physically impossible
for the accused to be at or near the place of the commission of the act at or about the time of its
commission. In addition, their proffered alibis were really unworthy of credit because only the
accused themselves and their relatives and other intimates substantiated them.44

2.

The essence of treachery is in the mode of attack,


not in the relative position of the victim and the assailant

The RTC ruled out the attendance of treachery due to its persuasion that the victim must have
been facing his assailants at the time of the assault and was thus not taken by surprise. The CA
differed from the RTC, however, and stressed that regardless of the position of the victim, the
essence of treachery was the element of surprise that the assailants purposely adopted to ensure
that the victim was not able to defend himself.45

We uphold the ruling of the CA.

There is treachery when: (a) at the time of the attack, the victim was not in a position to defend
himself; and (b) the accused consciously and deliberately adopted the particular means, methods,
or forms of attack employed by him.46 The essence of treachery lies in the suddenness of the
attack that leaves the victim unable to defend himself, thereby ensuring the commission of the
offense.47 It is the suddenness of the attack coupled with the inability of the victim to defend
himself or to retaliate that brings about treachery; consequently, treachery may still be
appreciated even if the victim was facing the assailant.48

Here, the elements of treachery were present. His assailants gunned Haide down while he was
preoccupied in the kitchen of his own abode with getting dinner ready for the household. He was
absolutely unaware of the imminent deadly assault from outside the kitchen, and was for that
reason in no position to defend himself or to repel his assailants.

The argument of the accused that the Prosecution did not show that they had consciously and
deliberately adopted the manner of killing Haide had no substance, for the testimonies of
Remedios and Francisco disclose the contrary.

Remedios testimony about seeing the four accused taking positions near the door to the kitchen
immediately preceding the shooting of Haide was as follows:

Atty. Fernandez:

xxx
Q. Were you present when the late Haide Cagatan was shot?

A. Yes, I was present.

Q. Could you possibly tell the Court in what particular place you were when the alleged incident
took place?

A. I was in the ground floor.

Q. What were you doing there?

A. I attended my child (to) answer(ing) the call of his (sic) nature.

Q. Now, could you possibly describe before this Honorable Court, Mrs. Cagatan, the exact event
that took place when the alleged shooting incident took place in your presence?

A. At that time, I attended my child (to) answer(ing) the call of (his) nature and after doing that
when I was about to stand up to go up I saw the Villaricos was (sic) at the back of the kitchen.

Q. At the time you saw them was (sic) any one of them saw you likewise?

A. There was.

Q. Who was he?

A. Gilberto Villarico, Jr.

Q. At that precise time when you saw them and one of them saw you, what did Villarico, Jr. do?

A. He aimed his gun to me.

Q. Could you possibly demonstrate that to the Court?

A. (Witness demonstrated by squatting position)

Q. Now at that precise moment when you saw Villarico, Jr. on a squatting position pointing his
gun at you, what was the exact action that you did?

A. When he aimed his gun to me I immediately dropped to the ground.

xxx

Q. Since you were personally present could you still remember Mrs. Cagatan how many gun
burst you head at that precise moment when you dropped to the ground because Villarico Jr. was
aiming his gun at you. How many gun burst did you hear?
A. Three gunbursts.

Q. Let us go back to the time when Villarico, Jr. pointed his gun to you. Do you still remember
what were the other accused doing or where were they at that time?

A. I can remember.

Q. Please tell the Honorable Court.

A. Gilberto Villarico, Sr. was on the right side; Ricky Villarico was on the left side and behind
Gilberto Villarico, Sr. was Jerry Ramientos and behind Ricky Villarico is (sic) Gilberto Villarico
Jr.

Q. What were Ricky and Gilberto Villarico, Jr. doing at the time?

A. They were also dropping themselves on the ground and aimed their guns.

Q. To what particular object that they were aiming their guns?

A. To the door of our kitchen.

Q. How about Ramientos, where was he at that time when you saw the accused pointing their
guns towards the door of your kitchen?

A. Ramientos was standing behind Gilberto Villarico Sr.49

Likewise, Francisco saw the four accused in the same positions that Remedios had seen them
moments prior to the shooting. He claimed that they were aiming their firearms at the kitchen
and continued aiming their firearms even as they were leaving the crime scene, viz:

Atty. Fernandez:

xxx

Q. Now you said that you saw all of the accused at the time when your late son Haide Cagatan
was murdered in the evening of August 8. Could you possibly explain to this Honorable Court at
the very first time what did you see?

A. After I came from the toilet I was proceeding to the kitchen because Haide was preparing
food and he was calling for dinner. When Haide Cagatan was calling for dinner and at the time I
was proceeding to the door of the kitchen, when I was near the door I heard the gun shots.

Q. At the time when you heard gunshots, what did you do?
A. I laid down flat on the ground while my head is (sic) looking up and there I saw the 3
Villaricos bringing a revolver. They came from aiming their guns towards upstairs and they are
about to withdraw from that place together with Jerry Ramientos.

xxx

Q. Now, since you said that you saw the accused Villaricos, could you possibly tell the Court,
what were their responsible position(s) in relation to the door of the kitchen?

A. They were in shooting position as they aimed upward and they were bringing revolver aiming
upstairs.

Q. In relation to the door of the kitchen, could you possibly tell the Court what were their
responsible position at that time when you saw them?

A. The four of them were situated in front of the kitchen door. Villarico Jr. and Villarico Sr. were
facing each other while Ricky Villarico and Jerry Ramientos were also facing each other.50

The testimonies of Remedios and Francisco on how and where the four accused had deliberately
and strategically positioned themselves could not but reveal their deliberate design to thereby
ensure the accomplishment of their design to kill Haide without any possibility of his escape or
of any retaliation from him. Aptly did the CA observe:

A perusal of the information shows that treachery was properly alleged to qualify the killing of
Heide [sic] Cagatan to murder. The prosecution was likewise able to prove treachery through the
element of surprise rendering the victim unable to defend himself. In this case, the evidence
shows that the victim, who was in the kitchen preparing dinner, could be seen from the outside
through the holes of the wall. The witnesses consistently described the kitchens wall as three
feet high bamboo splits (sa-sa), accented with bamboo splits woven to look like a chessboard
with 4-inch holes in between. The accused-appellants, likewise, positioned themselves outside
the kitchen door at night where the victim could not see them. When the accused-appellants shot
him, he was caught unaware.51

3.
Penalty and Damages

There is no question that the CA justly pronounced all the four accused guilty beyond reasonable
doubt of murder, and punished them with reclusion perpetua pursuant to Article 24852 of the
Revised Penal Code, in relation to Article 63, paragraph 2, of the Revised Penal Code,
considering the absence of any generic aggravating circumstance.

However, the CA did not explain why it did not review and revise the grant by the RTC of civil
liability in the amount of only P50,000.00. Thereby, the CA committed a plainly reversible error
for ignoring existing laws, like Article 2206 of the Civil Code,53 which prescribes a death
indemnity separately from moral damages, and Article 2230 of the Civil Code,54 which requires
exemplary damages in case of death due to crime when there is at least one aggravating
circumstance; and applicable jurisprudence, specifically, People v. Gutierrez,55 where we held
that moral damages should be awarded to the heirs without need of proof or pleading in view of
the violent death of the victim, and People v.Catubig,56 where we ruled that exemplary damages
were warranted whenever the crime was attended by an aggravating circumstance, whether
qualifying or ordinary. Here, the aggravating circumstance of treachery, albeit attendant or
qualifying in its effect, justified the grant of exemplary damages.

Plain oversight might have caused both the RTC and the CA to lapse into the serious
omissions.1avvphil Nonetheless, a rectification should now be made, for, indeed, gross
omissions, intended or not, should be eschewed. It is timely, therefore, to remind and to exhort
all the trial and appellate courts to be always mindful of and to apply the pertinent laws and
jurisprudence on the kinds and amounts of indemnities and damages appropriate in criminal
cases lest oversight and omission will unduly add to the sufferings of the victims or their heirs.
Nor should the absence of specific assignment of error thereon inhibit the sua sponte rectification
of the omissions, for the grant of all the proper kinds and amounts of civil liability to the victim
or his heirs is a matter of law and judicial policy not dependent upon or controlled by an
assignment of error. An appellate tribunal has a broad discretionary power to waive the lack of
proper assignment of errors and to consider errors not assigned,57 for technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and obligations of
the parties. Indeed, the trend in modern day procedure is to accord broad discretionary power
such that the appellate court may consider matters bearing on the issues submitted for resolution
that the parties failed to raise or that the lower court ignored.58

Consistent with prevailing jurisprudence, we grant to the heirs of Haide P75,000.00 as death
indemnity;59 P75,000.00 as moral damages;60 and P30,000.00 as exemplary damages.61 As
clarified in People v. Arbalate,62 damages in such amounts are to be granted whenever the
accused are adjudged guilty of a crime covered by Republic Act No. 7659, like the murder
charged and proved herein. Indeed, the Court, observing in People v. Sarcia,63 citing People v.
Salome64 and People v. Quiachon,65 that the "principal consideration for the award of damages
xxx is the penalty provided by law or imposable for the offense because of its heinousness, not
the public penalty actually imposed on the offender," announced that:

The litmus test[,] therefore, in the determination of the civil indemnity is the heinous character of
the crime committed, which would have warranted the imposition of the death penalty,
regardless of whether the penalty actually imposed is reduced to reclusion perpetua.

WHEREFORE, we affirm the decision promulgated on June 6, 2003 in CA-G.R. CR No.


24711, finding GILBERTO VILLARICO, SR., GILBERTO VILLARICO, JR., JERRY
RAMENTOS, and RICKY VILLARICO guilty of murder and sentencing each of them to suffer
reclusion perpetua, subject to the modification that they are held jointly and solidarily liable to
pay to the heirs of the late Haide Cagatan death indemnity of P75,000.00, moral damages of
P75,000.00, and exemplary damages of P30,000.00.

The accused shall pay the costs of suit.

SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

People of the Philippines vs Palanca

vii. Entries in the Course of business: Philippine Airlines vs


Ramos

FIRST DIVISION

G.R. No. 92740 March 23, 1992

PHILIPPINE AIRLINES, INC., petitioner,


vs.
JAIME M. RAMOS, NILDA RAMOS, ERLINDA ILANO, MILAGROS ILANO, DANIEL ILANO AND FELIPA JAVALERA, respondents.

MEDIALDEA, J.:

This petition for review on certiorari seeks to reverse the decision of the Court of Appeals dated March 15, 1990 affirming in toto the decision
of the Regional Trial Court of Imus, Cavite, Branch 21, directing the Philippine Airlines, Inc. (PAL, for short) to pay the private respondents
the amounts specified therein as actual, moral and temperate damages as well as attorney's fees and expenses of litigation.

The antecedents facts are briefly recounted by the appellate court, as follows:

Plaintiffs Jaime Ramos, Nilda Ramos, Erlinda Ilano, Milagros Ilano, Daniel Ilano and Felipe Javalera, are officers of the
Negros Telephone Company who held confirmed tickets for PAL Flight No. 264 from Naga City to Manila on
September 24, 1985, scheduled to depart for Manila at 4:25 p.m. The tickets were brought sometime in August 1985.
Among the conditions included in plaintiffs tickets is the following:

1. CHECK-IN TIME Please check in at the Airport Passenger check-in counter at least one hour before PUBLISHED
departure time of your flight. We will consider your accommodation forfeited in favor of waitlisted passenger if you fail to
check-in at least 30 minutes before PUBLISHED departure time. (Exhs. (1-A-A, 2-A-1, S-A, O-A-1, tsn. Nov 23, 1987,
p. 8).

Plaintiffs claim in their Complaint that they went tot he check-in counter of the defendant's Naga branch at least one (1)
hour before the published departure time but no one was at the counter until 30 minutes before departure, but upon
checking -in and presentation of their tickets to the employee/clerk who showed up, their tickets were cancelled and the
seats awarded to chance passengers; plaintiffs had to go to Manila by bus, and seek actual, moral and exemplary
damages, and attorney's fees for breach of contract of carriage.

Defendant disclaim any liability, claiming that the non-accommodation of plaintiff on the said flight was due to their
having check-in (sic) late for their flight. It is averred even if defendant is found liable to the plaintiffs such liability is
confined to, and limited by, the CAB Economic Regulations No. 7 in conjunction with P.D. 589.

The trial court rendered judgment finding defendant guilty of breach of contract of carriage in bumping-off the plaintiffs
from its F264 flight of September 25, 1985, and ordered defendant to pay:

1) P1,250.20 the total value of the tickets:


2) P22.50 the total value of airport security fees and terminal fees;

3) P20,000.00 for each of the plaintiffs for moral and temperate damages; and

4) P5,000.00 for attorney's fees and expenses of litigation. (Rollo, pp. 35-36)

PAL appealed to the Court of Appeals. On March 15, 990, the appellate court rendered a decision, the dispositive portion of which, reads:

WHEREFORE, the decision appealed from is AFFIRMED in toto, with costs against appellant.

SO ORDERED. (Rollo, p. 42)

Hence, this present petition with the following legal questions:

1. Can the Honorable Court of Appeals validity promulgate the questioned decision by the simple expedient of adopting
in toto the trial court's finding that defendant-appellant is liable for damages on the sole issue of credibility of witnesses
without considering the material admissions made by the plaintiffs and other evidence on record that substantiate the
defense of defendant-appellant.

2. Can the Honorable Court award legally moral and temperate damages plus attorney's fees of P5,000.00 contrary to
the evidence and established jurisprudence. (Rollo, p. 9)

Under Section 1, Rule 131 of the Rules of Court, each party in a case is required to prove his affirmative allegations. In civil cases, the
degree of evidence required of a party in order to support his claim is preponderance of evidence or that evidence adduced by one party
which is more conclusive and credible than that of the other party (Stronghold Insurance Company, Inc. vs. Court of Appeals, et al., G.R. No.
83376, May 29, 1989, 173 SCRA 619, 625).

The case at bar presents a simple question of fact: Whether or not the private respondents were late in checking-in for their flight from Naga
City to Manila on September 24. 1985. It is immediately apparent from the records of this case that the claims of the parties on this question
are dramatically opposed. As a rule, the determination of a question of fact depends largely on the credibility of witnesses unless some
documentary evidence is available which clearly substantiates the issue and whose genuineness and probative value is not disputed
(Legarda v. Miaile, 88 Phil. 637, 642). The exception to the rule now runs true in this case.

We reverse. This case once more illustrates Our power to re-weigh the findings of lower courts when the same are not supported by the
record or not based on substantial evidence (see Cruz v. Villarin, G.R. No. 75679, January 12, 1990, 181 SCRA 53, 61).

It is an admitted fact that the private respondents knew of the required check-in time for passengers. The time requirement is prominently
printed as one of the conditions of carriage on their tickets, i.e., that the airport passenger should check-in at least one hour before published
departure time of his flight and PAL shall consider his accommodation forfeited in favor of waistlisted passengers if he fails to check-in at
least 30 minutes.

We note that while the aforequoted condition has always been applied strictly and without exception (TSN, December 16, 1987, p. 11), the
station manager, however, may exercise his discretion to allow passengers who checked-in late to board provided the flight is not fully
booked and seats are available (ibid, pp. 17-18). On September 24, 1985, flight 264 from Naga to Manila was fully booked owing to the
Peafrancia Festival (TSN, January 25, 1988, p.5). In addition, PAL morning flights 261 and 262 were canceled resulting in a big number o f
waitlisted passengers. (TSN, November 23,
1987, p. 6).

The private respondents claim that they were on time in checking-in for their flight; that no PAL personnel attended to them until much later
which accounted for their late check-in; that PAL advanced the check-in time and the departure of their flight resulting in their non-
accommodation; and that they suffered physical difficulties, anxieties and business losses.

The evidence on record does not support the above contentions. We note that there were two other confirmed passengers who came ahead
of the private respondents but were refused accommodation because they were late. Edmundo Araquel, then the check-in-clerk, testified on
this point, as follows:

Atty. Marcelino C. Calica, counsel for PAL

Q Before the plaintiffs arrive (sic) at the check-in counter, do you recall if there were other
passengers who arrived at the counter and they were advised that they were late?

A Yes, sir.
Q Who were those persons?

A My former classmates at Ateneo, sir, Rose Capati and Go, Merly.

Q Were these two passengers also confirmed passengers on this flight?

A Yes, sir.

Q I show to you a document which is entitled "Passenger Manifest of flight 264, September 24,
1985," which we request to be marked as Exh. "5" you said earlier that aside from the plaintiffs
here there were two other passengers who also checked in but they were also late and you
mentioned the names of these passengers as Capati and Go, please point to us that entry which
will show the names of Go and Capati?

A Here, sir, numbers 13 and 14 of the Manifest.

ATTY. CALICA: We request that passengers 13 and 14 be marked in evidence, Go for 13 and
Capati for 14 as Exh. "5-A."

Q You said that these two passengers you mentioned were also similarly denied
accommodations because they checked in late, did they check in before or after the plaintiffs?

A Before, sir.

Q What time did they appear at the counter?

A 4:01 p.m., sir.

Q What happened when they checked in at 4:01?

A I told them also that they were late so they cannot be accommodated and they tried to protest,
but they decided later on just to refund the ticket. (TSN of November 23, 1987, pp. 11-12)

Shortly after, the private respondents followed the aforesaid two passengers at the counter. At this juncture, Araquel declared, thus:

Q Now, you said that you met the plaintiffs in this case because they were passengers of Flight
264 on September 24, 1985 and they were not accommodated because they checked in late,
what time did these plaintiffs check in?

A Around 4:02 p.m., sir.

Q Who was the clerk at the check in counter who attended to them?

A I was the one, sir.

xxx xxx xxx

Q You said when you were presented the tickets of the plaintiffs in this case and noting that they
were late for checking in, immediately after advising them that they were late, you said you made
annotation on the tickets?

A Yes, sir.

Q I am showing to you Exhs. "A," "B," "C," and "D," which are the tickets of Mr. & Mrs. Jaime
Ramos for Exh. "A," Exh. "B" ticket of Mr. & Mrs. Daniel Ilano, "C" ticket of Felipa Javalera and
"D" ticket of Erlinda Ilano, will you please go over the same and point to us the notations you said
you made on these tickets?

A This particular time, sir. (Witness pointing to the notation "Late" and the time "4:02" appearing
at the upper righthand of the tickets Exhs. "A," "B," "C," and "D.")
Q How long did it take after the tickets were tendered to you for checking in and before you made
this notation?

A It was just seconds, sir.

Q On the tickets being tendered for check-in and noting that they were late, you mean to say you
immediately made annotations?

A Yes, sir. That is an S.O.P. of the office.

Q So on what time did you base that 4:02?

A At the check-in counter clock, sir.

Q At the time you placed the time, what was the time reflected at the counter clock?

A 4:02, sir. (ibid, pp. 8-11)

The private respondents submitted no controverting evidence. As clearly manifested above, the intervening time between Capati and Go and
the private respondents took only a mere second. If indeed, the private respondents were at the check-in counter at 3:30 p.m., they could
have been the first ones to be attended to by Araquel than Capati and Go. They cold have also protested if they were the earliest passengers
at the counter but were ignored by Araquel in favor of Go and Capati. They did not.

It is likewise improbable that not a single PAL personnel was in attendance at the counter when the check-in counter was supposed to be
opened at 3:25 p.m. It mist be remembered that the morning flight to Manila was canceled and hence, it is not farfetched for Us to believe
that the PAL personnel then have their hands full in dealing with the passengers of the morning flight who became waitlisted passengers.
Moreover, the emphatic assertions of private respondent Daniel Javalora Ilano regarding the absence of a PAL personnel lost its impact
during the cross examination:

ATTY. CALICA

Q So, you maintain therefore that for all the time that you waited for there for the whole twenty
(20) minutes the check-in counter and other PAL Offices there the whole counter was
completely unmanned? I am referring to the whole area there where it is enclosed by a counter.

I will describe to you, for the benefit of the court.

When you approach the counter at Naga Airport, the counter is enclosed, I mean, you cannot just
go inside the PAL office, right? there is some sort of counter where you deal with the PAL
personnel and you approximate this counter to be five (5) to six (6) meters. Now, this space after
the counter, did you observe what fixtures or enclosures are contained there inside the enclosed
space?

A I am not sure whether there are offices or enclosures there.

Q You have been traveling and had opportunity to check-in your tickets so may times. Everytime
that you check-in, how many personnel are manning the check-in counter?

A There are about three (3) or four (4), sir.

Q Everytime, there are three (3) or four (4)?

A Everytime but not that time.

Q I am referring to your previous trips, I am not referring to this incident.

On previous occasions when you took the flight with Pili Airport and you see three (3) or four (4)
personnel everytime, are all these three (3) or four (4) personnel at the counter or some are
standing at the counter or others are seated on the table doing something or what? Will you
describe to us?

A Some are handling the baggages and some are checking-in the tickets.
Q So, on most occasions when you check-in and say, there were at least three (3) of four (4)
people at the check-in counter, one would attend to the tickets, another to the check in baggage,
if any. Now, do you notice if somebody evade when you check-in your ticket. This other person
would receive the flight coupon which is detached from your ticket and record it on what we call
passenger manifest?

A That's true.

Q Now, it is clear one would attend to the baggage, another person would receive the ticket,
detach the coupon and one would record it on the passenger manifest. What about the fourth,
what was he doing, if you recall?

A I think, putting the identification tags on the baggages (sic). (TSN, November 17, 1986, p. 38)

Ilano's declaration becomes even more patently unreliable in the face of the Daily Station Report of PAL dated September 24,
1985 which contained the working hours of its personnel from 0600 to 1700 and their respective assignments, as follows:

ATTY. CALICA

Q Normally upon opening of the check-in counter, how many PAL personnel are assigned to man
the counter?

EDMUNDO ARAQUEL

A A total of four personnel with the assistance of others.

Q Who are these personnel are assigned to the counter and what specific duties they performed?

A Mr. Oropesa handled the cargo, Mr. Espiritu handled the ticketing, Mr. Valencia and me
handled the checking in of passengers.

Q Are you referring to this particular flight 264 on September 24, 1985?

A Yes, sir.

Q Who was assigned as check-in clerk that particular time?

A I was the one with Mr. Valencia, sir.

Q What was Mr. Valencia doing?

A He assisted me, sir.

Q How?

A If a group of passengers simultaneously check in, we divided the work between us. (TSN,
November 23, 1987, p. 7)

xxx xxx xxx

Q When the plaintiffs testified in this case particularly plaintiff Daniel Ilano and Felipa Javalera at
the previous hearings said plaintiffs stated that they arrived at the check-in counter at about 3:25
or 3:30 and there was nobody in the counter, what can you say to that?

A We cannot leave the counter, sir. That was always manned from 3:25 up to the last minute. We
were there assigned to handle the checking in of the passengers.

Q You mentioned earlier that aside from you there were other personnel assigned to the check-in
counter and you even mentioned about a certain Valencia assisting you, do you have any
evidence to show said assignment of personnel at the airport?
A Yes, sir.

Q I show to you a daily station report from 24 September 1985 covering working hours 0600 to
1700, will you please go over the same and thereafter tell us from the personnel listed in this
Daily Station Report what were the name (sic) of the personnel assigned to man a check-in
counter at that time?

A There (sic) persons assigned were Mr. Oropesa, Mr. Espiritu, Mr. Medevilla, myself and Mr.
Valencia.

Q You mentioned about Mr. Espiritu, what was his specific task at that time?

A He was handling the ticketing, sir.

Q What about Mr. Medevilla?

A He was taking care of the ramp handling.

Q And Mr. Oropesa?

A He was handling the incoming cargo.

ATTY. CALICA: We request that this Daily Station Report be marked Exh. "6" and the portion of
the Report which shows the deployment of personnel of PAL Naga Station on September 24,
1985 as "6-A."

Q Plaintiffs in this case testified that when they checked in there was nobody manning the
counter and they had to wait for twenty minutes before someone came in to the counter, what can
you say to that?

A It is not true because all the time we were there from the start, an hour before the flight we were
there because we were assigned there.

Q Plaintiff Daniel Ilano testified that he went to the counter twice, first at 3:25 and it was only at
4:00 p.m. that somebody went to the counter and attended to him and while he expected his
boarding pass he was told instead that plaintiffs could not be accommodated because they were
late, what can you say to that?

A The truth is we were always there and we never left the counter from the start of the check-in
time of 3:25 we were all there, we never left the counter.

Q Until what time did you remain at the check-in counter?

A At around 4:15 p.m., sir.

Q You said that the check-in counter was closed at 3:55, for what purpose were you still manning
the check-in counter?

A To attend to the passenger who are late in checking in because they also need assistance in
explaining to them the situation.

Q So it was for that purpose you were there?

A Yes, sir. (ibid., pp. 16-18)

It is significant to note that there were no other passenger who checked-in late after the private respondents (TSN, November 23, 1987, p.
13). In the absence of any controverting evidence, the documentary evidence presented to corroborate the testimonies of PAL's witnesses
are prima facie evidence of the truth of their allegations. The plane tickets of the private respondents, exhs. "1," "2," "3," "4," (with emphasis
on the printed condition of the contract of carriage regarding check-in time as well as on the notation "late 4:02" stamped on the flight coupon
by the check-in clerk immediately upon the check-in of private respondents) and the passenger Manifest of Flight PR 264, exh. "5," (which
showed the non-accommodation of Capati and Go an the private respondents)are entries made in the regular course of business which the
private respondents failed to overcome with substantial and convincing evidence other than their testimonies. Consequently, they carry more
weight and credence. A writing or document made contemporaneously with a transaction in which are evidenced facts pertinent to an issue,
when admitted as proof of those facts, is ordinarily regarded as more reliable proof and of greater probative force than the oral testimony of a
witness as to such facts based upon memory and recollection (20 Am Jur S 1179, 1029 cited in Francisco, Revised Rules of Court in the
Philippines Annotated, 1973 Edition, Volume VII, Part II, p. 654). Spoken words could be notoriously unreliable as against a written document
that speaks a uniform language (Spouses Vicente and Salome de Leon v. CA., et al., G.R. No. 95511, January 30, 1992). This dictum is
amply demonstrated by the diverse allegations of the private respondents in their complaint (where they claimed that no one was at the
counter until thirty (30) minutes before the published departure time and that the employee who finally attended to them marked them late,
Records, p. 2) and in their testimonies (where they contended that there were two different PAL personnel who attended to them at the
check-in counter. TSNs of November 17, 1986, pp. 41-45 and of May 18, 1987, pp. 5-6). Private respondents' only objection to these
documents is that they are self-serving cannot be sustained. The hearsay rule will not apply in this case as statements, acts or conduct
accompanying or so nearly connected with the main transaction as to form a part of it, and which illustrate, elucidate, qualify or characterize
the act, are admissible as apart of the res gestae (32 C.J.S., S. 411, 30-31). Based on these circumstances, We are inclined to believe the
version of PAL. When the private respondents purchased their tickets, they were instantaneously bound by the conditions of the contract of
carriage particularly the check-in time requirement. The terms of the contract are clear. Their failure to come on time for check-in should not
militate against PAL. Their non-accommodation on that flight was the result of their own action or inaction and the ensuing cancellation of
their tickets by PAL is only proper.

Furthermore, We do not find anything suspicious in the fact that PAL flight 264 departed at 4:13 p.m. instead of 4:25 p.m. Apart from their
verbal assertions, the private respondents did not show any evidence of irregularity. It being clear that all the passengers have already
boarded, there was no sense in keeping them waiting for the scheduled time of departure before the plane could take flight.

ACCORDINGLY, the petition is GRANTED. The questioned decision of the Court of Appeals dated March 15, 1990 is hereby ANNULLED
and SET ASIDE. No costs.

SO ORDERED.

Narvasa, C.J., Cruz and Grio-Aquino, JJ., concur.

Bellosillo, J., is on leave.

viii. Entries in official records: Lao vs Standard Insurance

SECOND DIVISION

[G.R. No. 140023. August 14, 2003]

RUDY LAO, petitioner, vs. STANDARD INSURANCE CO., INC., respondent.

DECISION

QUISUMBING, J.:

The instant petition seeks the reversal of the Court of Appeals Decision348[1] dated February 4,
1999, as well as its Resolution,349[2] dated September 7, 1999, in CA-G.R. CV No. 47227. The
assailed decision dismissed petitioners appeal and the resolution denied petitioners motion for
reconsideration.
The original action was lodged before the Regional Trial Court of Iloilo City, Branch 25, as Civil
Case No. 17045 for breach of contract and damages, as a result of the insurance companys
refusal of petitioners claim on the insurance policy of his truck which figured in an accident
during the effectivity of the policy.

The following are the antecedent facts:

Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG-538. The truck was insured
with respondent Standard Insurance Co., Inc. under Policy No. CV-21074350[3] for the maximum
amount of P200,000 and an additional sum of P50,000 to cover any damages that might be
caused to his goods.

While the policy was in effect, an accident occurred. At around 8:00 p.m. of April 24, 1985, in
Barangay Buhang, Jaro, Iloilo City, the insured truck bumped another truck, with Plate No. FBS-
917, also owned by petitioner Lao. The latter truck was running ahead of the insured truck and
was bumped from the rear. The insured truck sustained damages estimated to be around
P110,692, while the damage to the other truck and to properties in the vicinity of the accident,
were placed at P35,000 more or less.

Petitioner filed a claim with the insurance company for the proceeds from his policy. However,
the claim was denied by the insurance company on the ground that when its adjuster went to
investigate the matter, it was found that the driver of the insured truck, Leonardo Anit, did not
possess a proper drivers license at the time of the accident. The restriction351[4] in Leonardo Anits
drivers license provided that he can only drive four-wheeled vehicles weighing not more than
4,500 kgs. Since the insured truck he was driving weighed more than 4,500 kgs., he therefore
violated the authorized driver clause352[5] of the insurance policy. In addition, respondent cited
the following excerpts from the police blotter of the Iloilo INP, to wit:

C-UN-85 DAMAGE TO PROPERTY W/ PHY INJURIES R/ IMPRUDENCE

11:30 PM Sgt. A. Bernas informed this office that a collision took place at Brgy. Buhang, Jaro,
IC. Investigation conducted by Pat. Villahermosa, assisted by Lt. P. Baclaron (OD), disclosed
that at about 8:00 PM this date at the aforementioned place, a collision took place between a
truck (Hino) with Plate Nr FB[S] 917 owned by Rudy Lao and driven by BOY GIDDIE Y
COYEL, 38 yrs, a res. of Balasan, Iloilo, with License Nr DLR 1108142 and another truck with
Plate Nr. FCG-538 owned by Rudy Lao and driver (sic) by LEONARDO ANIT Y PANES, 33
yrs, a res. of Brgy Laya, Balasan, Iloilo with License Nr 1836482. (Emphasis supplied.)353[6]
Petitioner claims that at the time of the accident, it was in fact another driver named Giddie Boy
Y Coyel who was driving the insured truck. Giddie Boy possessed a drivers license authorizing
him to drive vehicles such as the truck which weighed more than 4,500 kgs. As evidence,
petitioner presented the Motor Vehicle Accident Report354[7] wherein the Investigating Officer,
Pat. Felipe D. Villahermosa, stated that it was Giddie Boy driving the insured truck and not
Leonardo Anit. The said report was made three days after the accident or on April 27, 1985.
However, respondent insurance company was firm in its denial of the claim.

Hence, petitioner filed the civil case before the RTC. After trial, the court disposed of the case as
follows:

WHEREFORE, premises considered, the Court finds that plaintiff lacks sufficient cause of
action against the defendant and hence ordered his case dismissed and further orderes (sic) him
to pay the defendant the following:

1) P20,000.00 as attorneys fees plus P500.00 for appearance fee; and

2) P50,000.00 as exemplary damages.

SO ORDERED.355[8]

On appeal with the Court of Appeals, the RTC decision was affirmed. The petition was
dismissed and the motion for reconsideration was denied. The CA stated:

IN VIEW OF THE FOREGOING, the decision appealed from is hereby AFFIRMED.


Consequently, the complaint is DISMISSED for lack of merit.

SO ORDERED.356[9]

In his petition for review now before us, petitioner cites the following as grounds therefor:

A. THE HONORABLE COURT OF APPEALS AND THE LOWER COURT RELIED


MAINLY ON SECTION 44, RULE 130 OF THE RULES OF COURT IN UPHOLDING THE
ENTRY IN THE POLICE BLOTTER WHICH STATED THAT THE DRIVER OF THE
INSURED VEHICLE WAS LEONARDO ANIT Y PANES, WHO WAS NOT AN
AUTHORIZED DRIVER. UNDER THE SAID SECTION 44, RULE 130 ITSELF HOWEVER,
THE POLICE BLOTTER IS MERELY A PRIMA FACIE EVIDENCE OF THE FACTS
STATED THEREIN WHICH MAY BE NULLIFIED BY OTHER EVIDENCE;357[10]
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS ON THE
DIMINISHED CREDIBILITY OF PAT. FELIPE VILLAHERMOSA, THE TRAFFIC POLICE
INVESTIGATOR, IS MISPLACED AND UNFOUNDED;358[11]

C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR. FCG-538 WAS
GIDDIE BOY Y COYEL, AN AUTHORIZED DRIVER OF THE SAID TRUCK. THE
DRIVER OF THE OTHER TRUCK INVOLVED IN THE ACCIDENT WITH PLATE NR.
FBS-917 WAS LEONARDO ANIT Y PANES;359[12]

D. THE HONORABLE COURT OF APPEALS MISAPPLIED ARTICLES 2232 AND


2208 OF THE NEW CIVIL CODE IN GRANTING EXEMPLARY DAMAGES AND
ATTORNEYS FEES TO RESPONDENT. UNDER ARTICLES 2229 AND 2234 OF THE NEW
CIVIL CODE, EXEMPLARY DAMAGES CANNOT BE AWARDED IN THE ABSENCE OF
AN AWARD FOR MORAL, TEMPERATE, LIQUIDATED OR COMPENSATORY
DAMAGES;360[13]

E. TESTIMONIES OF THE WITNESSES OF RESPONDENT NAMELY, SGT. BERNAS,


THE DESK OFFICER AND ROMEO GUIERGEN, INSURANCE ADJUSTER, WERE
INCONSISTENT AND UNRELIABLE;361[14] and

F. THE HONORABLE COURT OF APPEALS UPHELD THE DECISION OF THE


LOWER COURT DESPITE GLARING MISAPPLICATION OF THE LAW AND
JURISPRUDENCE ESTABLISHED BY THIS HONORABLE SUPREME COURT AS WELL
AS CLEAR MISAPPREHENSION OF THE FACTS IN THIS CASE. 362[15]

Three issues must be resolved: (1) The admissibility and probative value of the police blotter as
evidence; (2) The assessment of the credibility of witnesses; and (3) The propriety and basis of
the awards for exemplary damages and attorneys fees. Also pertinent here is the factual issue of
whether or not Leonardo Anit, an unauthorized driver, was driving the insured truck at the time
of the accident.

Petitioner assails the admissibility and evidentiary weight given to the police blotter, as a basis
for the factual finding of the RTC and the CA. He contends that the same entry was belied by the
Motor Vehicle Accident Report and testimony of the investigating policeman himself, attesting
that it was Giddie Boy Coyel, not Leonardo Anit, who was driving the insured vehicle.363[16]
Respondent avers that the same police report and testimony were of dubious nature. Both trial
and appellate courts noted that the report was made three days after the accident and did not form
part of the official police records.364[17]

The police blotter was admitted under Rule 130, Section 44 of the Rules of Court.365[18] Under
the said rule, the following are the requisites for its admissibility:

(a) that the entry was made by a public officer, or by another person, specially
enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law;

(c) that the public officer or other person had sufficient knowledge of the facts by
him stated, which must have been acquired by him personally or through official
information.366[19]

We agree with the trial and appellate courts in finding that the police blotter was properly
admitted as they form part of official records.367[20] Entries in police records made by a police
officer in the performance of the duty especially enjoined by law are prima facie evidence of the
fact therein stated, and their probative value may be either substantiated or nullified by other
competent evidence.368[21] Although police blotters are of little probative value, they are
nevertheless admitted and considered in the absence of competent evidence to refute the facts
stated therein.

In this case, the entries in the police blotter reflected the information subject of the controversy.
Stated therein was the fact that Leonardo Anit was driving the insured truck with plate number
FCG-538. This is unlike People v. Mejia,369[22] where we said that entries in the police blotters
should not be given undue significance or probative value, since the Court there found that the
entries in question are sadly wanting in material particulars.

Furthermore, in this case the police blotter was identified and formally offered as evidence. The
person who made the entries was likewise presented in court; he identified and certified as
correct the entries he made on the blotter. The information was supplied to the entrant by the
investigating officer who did not protest about any inaccuracy when the blotter was presented to
him. No explanation was likewise given by the investigating officer for the alleged interchange
of names.

Petitioner also assails the credence given by the trial court to the version of the respondents vis--
vis the testimonies of the witnesses. Time and again we have reiterated the settled doctrine that
great weight, and even finality, is given to the factual conclusions of the Court of Appeals which
affirm those of the trial courts.370[23] We find on this score no reason to overturn such
conclusions.

On the issue of damages, we agree with petitioner that the award of exemplary damages was
improper. In Tiongco v. Atty. Deguma371[24] we held that the entitlement to the recovery of
exemplary damages must be shown. In the case at bar, respondent have not shown sufficient
evidence that petitioner indeed schemed to procure the dubious documents and lied through his
teeth to establish his version of the facts. What was found was that the document he presented
was inadmissible, and its contents were dubious. However, no proof was adduced to sufficiently
establish that it came to his hands through his employment of underhanded means. In Tiongco,
we further stated:

Although exemplary damages cannot be recovered as a matter of right, they also need not be
proved. But a complainant must still show that he is entitled to moral, temperate or
compensatory damages before the court may consider the question of whether or not exemplary
damages should be awarded.372[25]

Thus, it was error for the courts below to award exemplary damages in the absence of any award
for moral, temperate or compensatory damages.

The award of attorneys fees must also be deleted. Such award was given in its extraordinary
concept as indemnity for damages to be paid by the losing party to the prevailing party. 373[26] But
it was not sufficiently shown that petitioner acted maliciously in instituting the claim for
damages. Perforce, the award of attorneys fees was improper.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are AFFIRMED,
with the MODIFICATION that the award of exemplary damages and attorneys fees is hereby
DELETED. No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Austria-Martinez, and Tinga, JJ., concur.


Callejo, Sr., J., on leave.

Sabili vs COMELEC

EN BANC

G.R. No. 193261 April 24, 2012

MEYNARDO SABILI, Petitioner,


vs.
COMMISSION ON ELECTIONS and FLORENCIO LIBREA, Respondents.

DECISION

SERENO, J.:

Before us is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules of Court,
seeking to annul the Resolutions in SPA No. 09-047 (DC) dated 26 January 2010 and 17 August
2010 of the Commission on Elections (COMELEC), which denied due course to and canceled
the Certificate of Candidacy (COC) of petitioner Meynardo Sabili (petitioner) for the position of
Mayor of Lipa City for the May 2010 elections. At the

heart of the controversy is whether petitioner Sabili had complied with the one-year residency
requirement for local elective officials.

When petitioner filed his COC1 for mayor of Lipa City for the 2010 elections, he stated therein
that he had been a resident of the city for two (2) years and eight (8) months. Prior to the 2010
elections, he had been twice elected (in 1995 and in 1998) as Provincial Board Member
representing the 4th District of Batangas. During the 2007 elections, petitioner ran for the
position of Representative of the 4th District of Batangas, but lost. The 4th District of Batangas
includes Lipa City.2 However, it is undisputed that when petitioner filed his COC during the
2007 elections, he and his family were then staying at his ancestral home in Barangay (Brgy.)
Sico, San Juan, Batangas.

Private respondent Florencio Librea (private respondent) filed a "Petition to Deny Due Course
and to Cancel Certificate of Candidacy and to Disqualify a Candidate for Possessing Some
Grounds for Disqualification"3 against him before the COMELEC, docketed as SPA No. 09-047
(DC). Citing Section 78 in relation to Section 74 of the Omnibus Election Code,4 private
respondent alleged that petitioner made material misrepresentations of fact in the latters COC
and likewise failed to comply with the one-year residency requirement under Section 39 of the
Local Government Code. 5 Allegedly, petitioner falsely declared under oath in his COC that he
had already been a resident of Lipa City for two years and eight months prior to the scheduled 10
May 2010 local elections.

In support of his allegation, private respondent presented the following:

1. Petitioners COC for the 2010 elections filed on 1 December 20096

2. 2009 Tax Declarations for a house and lot (TCT Nos. 173355, 173356 and buildings
thereon) in Pinagtong-ulan, Lipa City registered under the name of Bernadette Palomares,
petitioners common-law wife7

3. Lipa City Assessor Certification of Property Holdings of properties under the name of
Bernadette Palomares8

4. Affidavit executed by private respondent Florencio Librea9

5. Sinumpaang Salaysay executed by Eladio de Torres10

6. Voter Certification on petitioner issued by COMELEC Election Officer Juan D.


Aguila, Jr.11

7. 1997 Voter Registration Record of petitioner12

8. National Statistics Office (NSO) Advisory on Marriages regarding petitioner13

9. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 3, Brgy. Lood, Lipa
City registered in the name of petitioner14

10. NSO Certificate of No Marriage of Bernadette Palomares15

11. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 5, Brgy. Lood,
Lipa City registered in the name of petitioner16

12. Lipa City Permits and Licensing Office Certification that petitioner has no business
therein17

13. Apparent printout of a Facebook webpage of petitioners daughter, Mey Bernadette


Sabili18

14. Department of Education (DepEd) Lipa City Division Certification that the names
Bernadette Palomares, Mey Bernadette Sabili and Francis Meynard Sabili (petitioners
son) do not appear on its list of graduates19

15. Certification from the Office of the Election Officer of Lipa City that Bernadette
Palomares, Mey Bernadette Sabili and Francis Meynard Sabili do not appear in its list of
voters20
16. Affidavit executed by Violeta Fernandez21

17. Affidavit executed by Rodrigo Macasaet22

18. Affidavit Executed by Pablo Lorzano23

19. Petitioners 2007 COC for Member of House of Representative24

For ease of later discussion, private respondents evidence shall be grouped as follows: (1)
Certificates regarding ownership of real property; (2) petitioners Voter Registration and
Certification (common exhibits of the parties); (3) petitioners COCs in previous elections; (3)
Certifications regarding petitioners family members; and (4) Affidavits of Lipa City residents.

On the other hand, petitioner presented the following evidence to establish the fact of his
residence in Lipa City:

1. Affidavit executed by Bernadette Palomares25

2. Birth Certificate of Francis Meynard Sabili26

3. Affidavit of Leonila Suarez (Suarez)27

4. Certification of Residency issued by Pinagtong-ulan Barangay Captain, Dominador


Honrade28

5. Affidavit executed by Rosalinda Macasaet29

6. Certificate of Appreciation issued to petitioner by the parish of Sto. Nino of Pinagtong-


ulan30

7. Designation of petitioner in the Advisory Body (AB) of Pinagtong-ulan, San Jose/Lipa


City Chapter of Guardians Brotherhood, Inc.31

8. COMELEC Voter Certification on petitioner issued by Election Officer Juan Aguila,


Jr.32

9. COMELEC Application for Transfer/Transfer with Reactivation dated 6 June 2009


signed by Election Officer Juan Aguila, Jr.33

10. Petitioners Income Tax Return for 200734

11. Official Receipt for petitioners income tax payment for 200735

12. Petitioners Income Tax Return for 200836

13. Official Receipt for petitioners income tax payment for 200837
14. Birth Certificate of Mey Bernadette Sabili38

15. Affidavit executed by Jacinto Cornejo, Sr.39

16. Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including past and
incumbent Pinagtong-ulan officials.40

For ease of later discussion, petitioners evidence shall be grouped as follows: (1) his Income
Tax Returns and corresponding Official Receipts for the years 2007 and 2008; (2) Certification
from the barangay captain of Pinagtong-ulan; (3) Affidavit of his common-law wife, Bernadette
Palomares; and (4) Affidavits from a previous property owner, neighbors, Certificate of
Appreciation from the barangay parish and Memorandum from the local chapter of Guardians
Brotherhood, Inc.

The COMELEC Ruling

In its Resolution dated 26 January 2010,41 the COMELEC Second Division granted the Petition
of private respondent, declared petitioner as disqualified from seeking the mayoralty post in Lipa
City, and canceled his Certificate of Candidacy for his not being a resident of Lipa City and for
his failure to meet the statutory one-year residency requirement under the law.

Petitioner moved for reconsideration of the 26 January 2010 Resolution of the COMELEC,
during the pendency of which the 10 May 2010 local elections were held. The next day, he was
proclaimed the duly elected mayor of Lipa City after garnering the highest number of votes cast
for the said position. He accordingly filed a Manifestation42 with the COMELEC en banc to
reflect this fact.

In its Resolution dated 17 August 2010,43 the COMELEC en banc denied the Motion for
Reconsideration of petitioner. Although he was able to receive his copy of the Resolution, no
prior notice setting the date of promulgation of the said Resolution was received by him.
Meanwhile, Section 6 of COMELEC Resolution No. 8696 (Rules on Disqualification Cases
Filed in Connection with the May 10, 2012 Automated National and Local Elections) requires
the parties to be notified in advance of the date of the promulgation of the Resolution.

SEC. 6. Promulgation. The promulgation of a Decision or Resolution of the Commission or a


Division shall be made on a date previously fixed, notice of which shall be served in advance
upon the parties or their attorneys personally, or by registered mail, telegram, fax, or thru the
fastest means of communication.

Hence, petitioner filed with this Court a Petition (Petition for Certiorari with Extremely Urgent
Application for the Issuance of a Status Quo Order and for the Conduct of a Special Raffle of
this Case) under Rule 64 in relation to Rule 65 of the Rules of Court, seeking the annulment of
the 26 January 2010 and 17 August 2010 Resolutions of the COMELEC. Petitioner attached to
his Petition a Certificate of Canvass of Votes and proclamation of Winning Candidates for Lipa
City Mayor and Vice-Mayor issued by the City/Municipal Board of Canvassers,44 as well as a
copy of his Oath of Office.45 He also attached to his Petition another Certification of Residency46
issued by Pinagtong-ulan Barangay Captain Dominador Honrade and sworn to before a notary
public.

On 7 September 2010, this Court issue