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Cases – Evidence (Remedial Law)

Rule 128
(People us. Encinada G.R. No. 116720, October 2. 1997)

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROEL ENCINADA, accused-


appellant.
The Solicitor General for plaintiff-appellee.
Alfonso S. Cassura for accused-appellant.
SYNOPSIS
Acting on an intelligence information received about 4:00 P.M. of May 20, 1992 that
appellant would be arriving in Surigao City from Cebu City in the morning of May 21,
1992 on board the M/V Sweet Pearl bringing with him "marijuana". Appellant was
searched without a warrant and found to possess 610 grams of dried marijuana
leaves. Appellant was later charged with illegal transportation of prohibited drugs
under Republic Act No. 6425, as amended. The trial court in convicting appellant held
that the warrantless arrest following his lawful arrest was valid and the marijuana
obtained was admissible in evidence. On appeal, appellant assails the sufficiency of
the evidence and the validity of the search conducted.

Generally, a search and seizure must be validated by a previously secured warrant;


otherwise, such search and seizure is subject to challenge. Any evidence obtained in
violation of Sec. 2, Art. III of the 1987 Constitution is legally inadmissible in evidence
as a "fruit of the poisonous tree." This principle is covered by the exclusionary rule
under the Constitution. The right against warrantless searches, however, is subject
to legal and judicial exceptions, as follows: (1) search incidental to a lawful arrest,
(2) search of moving vehicles, (3) seizure in plain view, (4) customs searches, and
(5) waiver by the accused themselves of their right against unreasonable search and
seizure which are not present in case at bar.
A search cannot be said to be merely incidental to a lawful arrest under Sec. 5 (a) of
Rule 113, Revised Rules of Court where appellant was not committing a crime in the
presence of policemen.
Raw intelligence information is not a sufficient ground for a warrantless arrest.
Administrative Circular No. 13 and Circular No. 19, Series of 1987, allows
applications for search warrants even after court hours. Lawmen cannot be allowed
to violate the very law they are expected to enforce. Bolonia's receipt of the
intelligence information regarding the culprit's identity, the particular crime he
allegedly committed and his exact whereabouts underscored the need to secure a
warrant for his arrest. But he failed or neglected to do so. Such failure or neglect
cannot excuse him from violating a constitutional right of the appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF THE TRIAL COURT
GENERALLY DESERVE GREAT RESPECT ON APPEAL. — On this subject of credibility,
the opinion of the trial court deserves great respect as it was in a better position to
observe the demeanor and deportment of the witnesses on the stand; hence, it was
in a superior situation to assess their testimonies.
2. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED (DANGEROUS
DRUGS ACT); PROOF OF OWNERSHIP, NOT NECESSARY IN PROSECUTION OF
ILLEGAL DRUGS CASES. — Proof of ownership of the marijuana is not necessary in
the prosecution of illegal drug cases; it is sufficient that such drug is found in
appellant's possession.
3. REMEDIAL LAW; CRIMINAL LAW; SEARCH AND SEIZURE MUST BE
VALIDATED BY A WARRANT. — Generally, a search and seizure must be validated by

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a previously secured warrant; otherwise, such search and seizure is subject to
challenge.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURE; INADMISSIBILITY OF EVIDENCE OBTAINED IN VIOLATION
THEREOF. — Section 2, Article III of the 1987 Constitution, is apropos: "SEC. 2. The
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizure of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized." Any evidence obtained in violation of this provision is legally inadmissible in
evidence as a "fruit of the poisonous tree." This principle is covered by this
exclusionary rule: "SEC. 3. . . . (2) Any evidence obtained in violation of . . . the
preceding section shall be inadmissible for any purpose in any proceeding."
5. ID.; ID.; ID.; BASIS OF PROTECTION. — The plain import of the foregoing
provision is that a search and seizure is normally unlawful unless authorized by a
validly issued search warrant or warrant of arrest. This protection is based on the
principle that, between a citizen and the police, the magistrate stands as a mediator,
nay, an authority clothed with power to issue or refuse to issue search warrants or
warrants of arrest.
6. ID.; ID.; RIGHT AGAINST WARRANTLESS SEARCH; EXCEPTIONS. — The right
against warrantless searches, however, is subject to legal and judicial exceptions, as
follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3)
seizure in plain view, (4) customs searches, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure. In these cases,
the search and seizure may be made only upon probable cause as the essential
requirement.
7. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; PROBABLE
CAUSE, CONSTRUED. — Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the person accused is
guilty of the offense with which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and destruction by law is
in the place to be searched.
8. ID.; ID.; WARRANTLESS ARREST; RAW INTELLIGENCE INFORMATION, NOT
SUFFICIENT GROUND; CASE AT BAR. — In this case, appellant was not committing a
crime in the presence of the Surigao City policemen. Moreover, the lawmen did not
have personal knowledge of facts indicating that the person to be arrested had
committed an offense. The search cannot be said to be merely incidental to lawful
arrest. Raw intelligence information is not a sufficient ground for a warrantless
arrest. Bolonia's testimony shows that the search preceded the arrest. Lawmen
cannot be allowed to violate the very law they are expected to enforce. Bolonia's
receipt of the intelligence information regarding the culprit's identity, the particular
crime he allegedly committed and his exact whereabouts underscored the need to
secure a warrant for his arrest. But he failed or neglected to do so. Such failure or
neglect cannot excuse him from violating a constitutional right of the appellant.
9. ID.; ID.; ARREST; WARRANTS MAY BE APPLIED EVEN AFTER COURT HOURS.
— Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992
at his house, there was sufficient time to secure a warrant of arrest, as the M/V

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Sweet Pearl was not expected to dock until 7:00 a.m. the following day.
Administrative Circular No. 13 allows applications for search warrants even after
court hours: "3. Raffling shall be strictly enforced, except only in case where an
application for search warrant may be filed directly with any judge in whose
jurisdiction the place to be searched is located, after office hours, or during
Saturdays, Sundays, and legal holidays, in which case the applicant is required to
certify under oath the urgency of the issuance thereof after office hours, or during
Saturdays, Sundays and legal holidays;" (italics supplied) The same procedural
dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled
"Amended Guidelines and Procedures on Applications for Search Warrants for Illegal
Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and
Other Courts with Multiple Salas."
10. ID.; ID.; ID.; SEARCH; CONSENT MAY VALIDATE AN ILLEGAL SEARCH;
CONSENT NOT EQUATED BY MERE PASSIVITY UNDER INTIMIDATING OR COERCIVE
CIRCUMSTANCES. — We are not convinced. While in principle we agree that consent
will validate an otherwise illegal search, we believe that appellant—based on the
transcript quoted — did not voluntarily consent to Bolonia's search of his belongings.
Appellant's silence should not be lightly taken as consent to such search. The implied
acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee.
Furthermore, considering that the search was conducted irregularly, i.e., without a
warrant, we cannot appreciate consent based merely on the presumption of
regularity of the performance of duty.
11. ID.; EVIDENCE; PROOF BEYOND REASONABLE DOUBT; NOT ESTABLISHED IN
CASE AT BAR. — Without the illegally seized prohibited drug, the appellant's
conviction cannot stand. There is simply no sufficient evidence remaining to convict
him. That the search disclosed a prohibited substance in appellant's possession, and
thus confirmed the police officers' initial information and suspicion, did not cure its
patently illegality. An illegal search cannot be undertaken and then an arrest effected
on the strength of the evidence yielded by the search. DECSIT
DECISION
PANGANIBAN, J p:
In acquitting the appellant, the Court reiterates the constitutional proscription that
evidence (in this case, prohibited drugs) seized without a valid search warrant is
inadmissible in any proceeding. A yield of incriminating evidence will not legitimize
an illegal search. Indeed, the end never justifies the means.
The Case
This principle is stressed in this appeal from the Judgment, 1 promulgated on July
15, 1994 by the Regional Trial Court of Surigao City, Branch 32, 2 in Criminal Case
No. 3668, convicting Appellant Roel Encinada of illegal transportation of prohibited
drugs under Section 4 of Republic Act No. 6425, as amended by Batas Pambansa
Blg. 179.
An Information, 3 dated May 22, 1992, was filed by Third Asst. Surigao City
Prosecutor Virgilio M. Egay charging appellant of said crime allegedly committed as
follows:
"That on or about May 21, 1992, in the City of Surigao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, in gross disregard of
the prohibition of the provisions of Republic Act No. 6425 as amended by Batas
Pambansa Bilang 179, did then and there willfully, unlawfully and feloniously have in
his possession, custody and control dried marijuana leaves weighing 800 grams,
more or less, which he transported to Surigao City from Cebu City aboard a

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passenger ship, well knowing that such acts are expressly prohibited by law."
Before arraignment, appellant, assisted by Counsel Antonio Casurra, offered to plead
guilty to a lesser offense, i.e., illegal possession of prohibited drugs. 4 The trial court
requested the prosecution to study the offer, 5 but the records do not show any
agreement on such proposal.
Upon his arraignment, appellant pleaded "not guilty" to the charge. 6 After the
prosecution presented its evidence, the defense filed, with leave of court, 7 a
"Demurrer to Evidence" dated September 1, 1993, 8 questioning the admissibility of
the evidence which allegedly was illegally seized from appellant. The court a quo
denied the motion, ruling: 9
"For resolution is the demurrer to evidence dated September 1, 1993 of the accused,
Roel Encinada, praying that he be acquitted of the crime charged on the ground of
the inadmissibility of the evidence for the prosecution consisting of the marijuana
(seized) from him by the police. The accused raised the following issues, to wit: (1)
Whether the arrest and search of the accused without a warrant would fall under the
doctrine of warrantless search as an incident to a lawful arrest; and, (2) Whether the
subject marijuana is admissible in evidence against the accused.
xxx xxx xxx
A scrutiny of the evidence for the prosecution shows that the events leading to the
arrest of the accused started when SPO4 Nicolas Bolonia, chief of the PNP vice
control section, received a tip from his informer that the accused, Roel Encinada
would be arriving on board the M/V Sweet Pearl at about seven o'clock in the
morning of May 21, 1992. On cross-examination SPO4 Bolonia testified that the
information was given to him by his asset at about four o'clock in the afternoon of
May 20, 1992. After receiving the tip he relayed the information to SPO4 Cipriano
Iligan, Jr., PNP chief of intelligence. SPO4 Bolonia further declared that he would
have applied for a search warrant but there was simply no time for it.
xxx xxx xxx
In the later case of People vs. Tangliben (184 SCRA 220) the Supreme Court
modified its ruling in the Aminuddin case when it held that the arrest and search is
lawful when the police had to act quickly and there was no more time to secure a
search warrant. It is noted that the tip was given to SPO4 Bolonia by his informant at
about the closing time of the offices of the various courts. He still had to inform
SPO4 Iligan in order to coordinate with him. The boat carrying the accused was
scheduled to dock in Surigao City at seven o'clock the following morning when the
courts had not yet opened.
It is therefore quite obvious that the police did not have enough time to apply for a
search warrant in the interim. The police cannot be faulted for acting on the tip and
for stopping and searching the accused even without a warrant.
In the case at bar, the accused was caught in flagrante delicto in actual possession of
the marijuana. The search made upon his personal effects falls squarely under
paragraph (a) of Rule 113, Section 5 of the 1985 Rules on Criminal Procedure which
allows a warrantless search as an incident to a lawful arrest (People vs. Malmstedt,
198 SCRA 401).
xxx xxx xxx
WHEREFORE, premises considered, the demurrer to evidence in question is denied
for lack of merit."
After trial in due course, the assailed Judgment was rendered, the decretal portion of
which reads:
"WHEREFORE, premises considered, the Court finds the accused, Roel Encinada,
guilty beyond reasonable doubt of the violation of Section 4, Article II, of Republic
Act No. 6425 as amended by Batas Pambansa Bilang 179, and hereby sentences him

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to suffer the penalty of life imprisonment and to pay a fine of twenty thousand pesos
(P20,000.00) without subsidiary imprisonment in case of insolvency; and to pay the
costs.
The marijuana (Exhibit B) involved in this case is hereby forfeited to the government
to be destroyed or disposed of pursuant to present rules and regulations. The two
plastic chairs (Exhibits D and D-1) are also forfeited to the government."
The Facts
Version of the Prosecution
The Solicitor General, in the Appellee's Brief, recounts the events leading to
appellant's arrest, as follows: 10
"At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was in his house when he
received a tip from an informant that Roel Encinada would be arriving in Surigao City
from Cebu City in the morning of May 21, 1992 on board the M/V Sweet Pearl
bringing with him 'marijuana.' Bolonia was then Chief of the Vice Control Squad of
the Surigao City Police (pp. 27-29; TSN, November 27, 1992, 34-40; p. 10, TSN,
May 14, 1993).
Bolonia already knew Encinada because the latter previously was engaged in illegal
gambling known as 'buloy-buloy.' After receiving the tip, Bolonia notified the
members of his team — SPO3 Marcial Tiro, SPO3 Glen Abot and SPO3 Charlito Duero
— as well as his colleague SPO4 Cipriano Iligan, Jr., the chief of the Intelligence and
Investigation Division, of the information he received. Because the information came
late, there was no more time to secure a search warrant (pp. 38; TSN, November
27, 1992, May 14, 1993, p. 13; pp. 4, 19; TSN, March 3, 1993).
In the early morning of May 21, 1992, Bolonia, Iligan and other police officers
deployed themselves in different strategic points at the city wharf to intercept
Encinada. At about 8:15 a.m. of the same day, the M/V Sweet Pearl finally docked.
The police officers saw Encinada walk briskly down the gangplank, carrying two small
colored plastic baby chairs in his hand (p. 11 TSN, May 14, 1993; pp. 4, 5, 15-16
TSN, March 3, 1993; pp. 29-30 TSN, November 27, 1992, pp. 29-30).
From their various positions, the police officers followed Encinada immediately
boarded a tricycle at Borromeo Street, still holding the plastic chairs. As the tricycle
slowly moved forward, Bolonia chased it and ordered the driver to stop after
identifying himself as a police officer. When the vehicle stopped, Bolinia identified
himself to Encinada and ordered him to alight from the tricycle. Bolonia asked
Encinada to hand over the plastic chairs, to which the latter complied (pp. 5, 6, 17
TSN, March 3, 1993, pp. 30-32, 35 TSN, November 27, 1992).
Bolonia noticed that there were two small chairs, one green and the other blue,
stacked together and tied with a piece of string. Between the stack of chairs, there
was a bulky package. Bolonia examined it closely and smelled the peculiar scent of
marijuana. Making a small tear in the cellophane cover, Bolonia could see and smell
the what appeared to be 'marijuana,' a prohibited drug (pp. 6-9 TSN, March 3, 1993,
Exh. 'B', 'D' and sub-markings; pp. 32-34. 35-39 TSN, November 27, 1992).
Encinada was brought to the central police station. Bolonia, in the presence of one
Nonoy Lerio who is a member of the local media and a friend of Encinada, opened
the package. It was discovered that indeed, the contents consisted of dried leaves
known as marijuana. In the course of the investigation, Encinada surrendered to
Bolonia his passenger ticket issued by M/V Sweet Pearl (pp. 9-11 TSN, March 3,
1993, Exh. 'E'; pp. 34-35, 39-40 TSN, November 27, 1992).
On July 13, 1992, Bolonia brought the package of dried leaves for examination at the
PNP Crime Laboratory at Camp Evangelista, Cagayan de Oro City. The forensic
chemist, Inspector Vicente Armada, tested the leaves and confirmed that they were
positive for marijuana. However, the marijuana only weighed 610 grams, which

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Armada opined to be probably due to shrinkage and moisture loss (pp. 12-17, 19-21,
24-40, 41; TSN, November 27, 1992, Exh. 'A', 'B', 'C' and sub-markings.)"
Version of the Defense
Appellant sets up denial as his defense. In his brief, he denied ownership and
possession of said plastic baby chairs, as follows: 11
"1) In the morning of May 21, 1992, at around 8:00 o'clock in the morning, more
or less, the accused was seen to have disembarked from M/V Sweet Pearl after an
overnight trip from Cebu City;
2) The accused proceeded to the Surigao PPA Gate and boarded a motorela
bound for his residence at Little Tondo, (within the City Proper), Surigao City. The
Motorela was fully loaded with passengers, with the accused as the fourth
passenger;
3) When the motorela was already able to travel a distance of about ten (10)
meters more or less, the same was forcibly stopped by persons who ordered the
passengers to disembarked (sic). Thereafter, all the (baggage) of the passengers
and the driver were ordered to stand in a line for which a body search was made
individually (sic);
4) After the search was made, the accused was singled out in the line and
ordered to board the service vehicle of the police and was brought to the PNP Police
Station.
Before however the accused boarded the jeep, he was openly protesting to the
action taken by the police authorities and demanded from the apprehending officers
a copy of a search warrant and/or warrant of arrest for the search made and for his
apprehension;
5) In the police headquarters, the accused was made to undergo custodial
investigation for which a plastic bag was presented to him allegedly containing the
subject marijuana leaves. The accused denied that the said plastic bag belonged to
him.
The denial was witnessed by Mr. Daniel 'Nonoy' Lerio, Jr. a member of the Surigao
City Press, who was invited by the Police Investigators to witness the presentation of
the alleged marijuana leaves, during the said investigation; cdrep
6) After the custodial investigation, the accused was placed immediately behind
bars and the Information for Violation of RA 6425 as amended by Batas Pambansa
Blg. 179 was filed before the Court;
xxx xxx xxx"
Aside from appellant, the defense also presented five (5) other witnesses whose
testimony allegedly established the following: 12
"8.a) Ruben Concha — the driver of the motorela who testified that he was
surprised when the motorela he was driving was forcibly stopped (while already in
motion ) by the police authorities while directing his four (4) passengers, (3 males
and 1 female) to disembarked (sic) together with their (baggage).
That after the search was made, the accused was singled out, and despite the
protests made, was ordered to board the Police service vehicle, while the 2 other
male passengers just left the scene while the female passenger continued to board
the motorela who directed him to proceed to the residence of Baby Encinada to
verify whether the person picked up by the police authorities was related to the
latter;
8.b) Josephine Nodalo — testified that she is a beautician, and that she was one of
the four (4) passengers of the motorela driven by Ruben Concha, which motorela
was forcibly stopped by men who are chasing it after travelling a distance of 5 to 10
meters away from its loading area near the PPA Gate.
All the four (4) passengers were ordered to disembarked (sic) from the motorela

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whereupon they were all subjected to body search including their (baggage).
That it was the male passenger who was sitting at the rear portion of the motorela
who was picked up by the Police Authorities and despite the protests made was
ordered to board the Police service vehicle.
Upon learning from the persons who were gathered at the scene, that the one who
was picked up was the son of Mr. Encinada, the latter boarded back the motorela and
directed the driver to proceed to the residence of the Encinada's at Little Tondo to
verify whether it was really their son who was picked up by the police authorities.
She made this, as Mrs. Encinada, (the mother of the accused) is his (regular)
customer;
8.c) Mr. Daniel 'Nonoy' Lerio, Jr. — testified that, being a member of the Press, he
was requested by the police authorities to witness the custodial investigation
conducted upon the person of the accused, who, during the entire proceedings of the
investigation vehemently denied having any knowledge about the marijuana leaves
placed inside the plastic bag;
8.d) Isabelita Encinada — testified that she was informed by her manicurist
(Josephine Nodalo) about the arrest . . . (of) her son, somewhere at the PPA Port
Area and upon being informed, she and her husband immediately went to the
Surigao PNP Headquarters to verify the (news) . . .;"
xxx xxx xxx"
Ruling of the Trial Court
The trial court rejected appellant's claim that he was merely an innocent passenger
and that his package contained mango and otap samples, not marijuana.
Emphasizing that the Surigao City Police had no ill motive against appellant, the trial
court gave credence to SPO4 Bolonia's story that he actually received from his police
asset the information regarding appellant's arrival in Surigao City. The trial court
further emphasized that appellant was caught carrying marijuana in flagrante delicto.
Hence, the warrantless search following his lawful arrest was valid and the marijuana
obtained was admissible in evidence.
Assignment of Errors
In his Brief, appellant submits the following assignment of errors: 13
"I. The lower court erred in finding that the accused was caught in flagranti (sic)
delicto in possession of the subject marijuana leaves and is the one responsible in
transporting the same;
II. The lower court gravely erred in finding that search and the arrest of the
accused without a warrant would fall under the doctrine of warrantless search as
incident to a lawful arrest —
III. The lower court gravely erred in finding that the subject marijuana leaves is
admissible in evidence —"
In short, the main issues are (1) the sufficiency of the evidence showing possession
of marijuana by appellant and (2) the validity of the search conducted on the person
and belongings of the appellant.
The Court's Ruling
The petition is meritorious.
First Issue: Illegal Possession of Prohibited Drugs
Appellant claims that the prosecution failed to prove his possession and ownership of
the plastic baby chairs. He contends that the testimonies of Bolonia and Iligan
conflicted as to the number of passengers riding the motorela. Such alleged conflict
is peripheral and irrelevant. Hence, it deserves scant consideration. Appellant adds
that such testimonies also conflicted as to the place where appellant sat inside the
motorela. This claim, aside from being flimsy, is also not supported by the transcript
of stenographic notes.

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In his testimony, appellant vehemently denied possession of the plastic baby chairs,
stressing that he was not holding them when the search was conducted. However,
his denial is easily rebutted by Bolonia's testimony: 14
"Q: When you saw Roel Encinada who disembarked from M/V Sweet Pearl, what
did you observe in his person, if any?
A: He was carrying a (sic) baby chairs.
Q: What kind of chairs?
A: A (sic) plastic chairs.
xxx xxx xxx
Q: After you saw Roel Encinada disembarked (sic) from the boat, what did you
and your companions do?
A: We followed him behind because we posted in the different direction(s) in the
wharf.
xxx xxx xxx
Q: You said you followed Roel Encinada, what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and
let him stopped (sic).
xxx xxx xxx
Q: By the way, where was (sic) this (sic) two plastic chairs placed in the
motorize tricycle?
A: He was sitting at the back of the motor at the right portion of the seat and
the chairs was (sic) placed besides him. ([W]itness indicating that he was sitting
(sic) an imaginary seat at the back of the motor and holding an (sic) imaginary
chairs with his left arm)."
Between these two contentions, the choice of the trial court prevails because this is a
matter that involves credibility of witnesses. On this subject of credibility, the opinion
of the trial court deserves great respect as it was in a better position to observe the
demeanor and deportment of the witnesses on the stand; 15 hence, it was in a
superior situation to assess their testimonies.
Furthermore, proof of ownership of the marijuana is not necessary in the prosecution
of illegal drug cases; 16 it is sufficient that such drug is found in appellant's
possession.
Second Issue: Illegal Search and Seizure
Based on the foregoing discussion, appellant's conviction could have been affirmed
by this Court. However, the very evidence implicating him — the prohibited drugs
found in his possession — cannot be used against him in this case or, for that
matter, in "any proceeding."
Generally, a search and seizure must be validated by a previously secured warrant;
otherwise, such search and seizure is subject to challenge. 17 Section 2, Article III of
the 1987 Constitution, is apropos:
"SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized." cdll
Any evidence obtained in violation of this provision is legally inadmissible in evidence
as a "fruit of the poisonous tree." This principle is covered by this exclusionary rule:
"SEC. 3. ...
(2) Any evidence obtained in violation of . . . the preceding section shall be

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inadmissible for any purpose in any proceeding."
The plain import of the foregoing provision is that a search and seizure is normally
unlawful unless authorized by a validly issued search warrant or warrant of arrest.
This protection is based on the principle that, between a citizen and the police, the
magistrate stands as a mediator, nay, an authority clothed with power to issue or
refuse to issue search warrants or warrants of arrest. 18
The right against warrantless searches, however, is subject to legal and judicial
exceptions, as follows: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure. 19 In
these cases, the search and seizure may be made only upon probable cause as the
essential requirement. Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the person accused is
guilty of the offense with which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and destruction by law is
in the place to be searched. 20
In this case, Bolonia received at 4:00 p.m. on May 20, 1992 an intelligence report
that appellant who was carrying marijuana would arrive the next morning aboard the
M/V Sweet Pearl. Although such report could have been the basis of probable cause,
Bolonia explained that he could not secure a warrant because the courts in Surigao
City were already closed for the day. Thus, he and the other lawmen had no choice
but to proceed the next morning to the port area. After appellant disembarked from
the ship and rode a motorela, Bolonia stopped the motor vehicle and conducted the
search. He rummaged through the two strapped plastic baby chairs which were held
by appellant and found inserted between them a package of marijuana wrapped in a
small plastic envelope.
Appellant contended before the lower court that the warrantless search of his
belongings was proscribed by the Constitution. But the trial judge rejected this
contention, opining that appellant was caught in flagrante delicto at the time of his
arrest. Hence, it concluded that the warrantless search conducted after his "lawful
arrest" was valid and that the marijuana was admissible in evidence.
Rule 113, Section 5, discusses the instances when a warrantless arrest may be
effected, as follows:
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
xxx xxx xxx."
In this case, appellant was not committing a crime in the presence of the Surigao
City policemen. Moreover, the lawmen did not have personal knowledge of facts
indicating that the person to be arrested had committed an offense. The search
cannot be said to be merely incidental to a lawful arrest. Raw intelligence information
is not a sufficient ground for a warrantless arrest. Bolonia's testimony shows that the

9
search preceded the arrest: 21
"Q: You said you followed Roel Encinada, what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and
let him stopped (sic).
xxx xxx xxx
Q: You said you stopped the motor tricycle in which Roel Encinada (sic) riding,
what did you do?
A: At first I identified myself to the driver and to some of the passengers.
xxx xxx xxx
Q: And after that, what happened next?
A: I requested Roel Encinada to disembark from the motor tricycle because of
that information given to us in his possession;
Q: Possession of what?
A: Possession of marijuana, Sir.
Q: And Roel Encinada alighted from the motor vehicle?
A: Yes, Sir.
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried."
Contrary to the trial court's ruling, People vs. Tangliben 22 is factually inapplicable to
the case at bar. The prosecution's evidence did not show any suspicious behavior
when the appellant disembarked from the ship or while he rode the motorela. No act
or fact demonstrating a felonious enterprise could be ascribed to appellant under
such bare circumstances.
We disagree with the trial court's justification for the search:
"The arrest of the accused without warrant was lawful because there was a probable
cause or ground for his apprehension. The police had received reliable, albeit
confidential information from their informant that Roel Encinada would be bringing in
marijuana from Cebu City on board the M/V Sweet Pearl. Unfortunately there was no
more time for the police to apply for and secure a search warrant as the information
was received late in the afternoon of May 20, 1992 and the accused was expected to
arrive at seven o'clock the following morning. The different courts were closed by
then. Nevertheless the police felt constrained to act on the valuable piece of
information."
Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at
his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet
Pearl was not expected to dock until 7:00 a m. the following day. Administrative
Circular No. 13 allows applications for search warrants even after court hours:
"3. Rafflling shall be strictly enforced, except only in case where an application
for search warrant may be filed directly with any judge in whose jurisdiction the
place to be searched is located, after office hours, or during Saturdays, Sundays, and
legal holidays, in which case the applicant is required to certify under oath the
urgency of the issuance thereof after office hours, or during Saturdays, Sundays and
legal holidays; (Emphasis supplied)
The same procedural dispatch finds validation and reiteration in Circular No. 19,
series of 1987, entitled "Amended Guidelines and Procedures on Applications for
Search Warrants for Illegal Possession of Firearms and Other Serious Crimes Filed in
Metro Manila Courts and Other Courts with Multiple Salas":
"This Court has received reports of delay while awaiting raffle, in acting on
applications for search warrants in the campaign against loose firearms and other
serious crimes affecting peace and order. There is a need for prompt action on such
applications for search warrant. Accordingly, these amended guidelines in the

10
issuance of a search warrant are issued:
1. All applications for search warrants relating to violation of the Anti-subversion
Act, crimes against public order as defined in the Revised Penal Code, as amended,
illegal possession of firearms and/or ammunition and violations of the Dangerous
Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be
taken cognizance of and acted upon by the Executive Judge of the Regional Trial
Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction
the place to be searched is located.
2. In the absence of the Executive Judge, the Vice-Executive Judge shall take
cognizance of and personally act on the same. In the absence of the Executive Judge
or Vice-Executive Judge, the application may be taken cognizance of and acted upon
by any judge of the Court where the application is filed. cdphil
3. Applications filed after office hours, during Saturdays, Sundays and holidays,
shall likewise be taken cognizance of and acted upon by any judge of the Court
having jurisdiction of the place to be searched, but in such cases the applicant shall
certify and state the facts under oath, to the satisfaction of the judge, that its
issuance is urgent.
4. Any judge acting on such application shall immediately and without delay
personally conduct the examination of the applicant and his witnesses to prevent the
possible leakage of information. He shall observe the procedures, safeguards, and
guidelines for the issuance of search warrants provided for in this Court's
Administrative Circular No. 13, dated October 1, 1985."
In People vs. Aminnudin, the Court declared as inadmissible in evidence the
marijuana found in appellant's possession during a search without a warrant,
because it had been illegally seized. The Court firmly struck down the policemen's
cavalier disregard for the Bill of Rights, explaining:
"The present case presented no urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival
was certain. And from the information they had received, they could have persuaded
a judge that there was probable cause, indeed, to justify the issuance of a warrant.
Yet they did nothing. No effort was made to comply with the law. The Bill of Rights
was ignored altogether because the PC lieutenant who was the head of the arresting
team, had determined on his own authority that a 'search warrant was not
necessary.'"
Lawmen cannot be allowed to violate the very law they are expected to enforce.
Bolonia's receipt of the intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact whereabouts underscored the
need to secure a warrant for his arrest. But he failed or neglected to do so. Such
failure or neglect cannot excuse him from violating a constitutional right of the
appellant.
It is significant that the Solicitor General does not share the trial judge's opinion.
Taking a totally different approach to justify the search, the Republic's counsel avers
that appellant voluntarily handed the chairs containing the package of marijuana to
the arresting officer and thus effectively waived his right against the warrantless
search. This, he gleaned from Bolonia's testimony: 23
"Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, Sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two

11
plastic chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two
chairs."
We are not convinced. While in principle we agree that consent will validate an
otherwise illegal search, we believe that appellant — based on the transcript quoted
above — did not voluntarily consent to Bolonia's search of his belongings. Appellant's
silence should not be lightly taken as consent to such search. 24 the implied
acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee. 25
Furthermore, considering that the search was conducted irregularly, i.e, without a
warrant, we cannot appreciate consent based merely on the presumption of
regularity of the performance of duty.
Appellant's alleged acquiescence should be distinguished from the consent
appreciated in the recent case of People vs. Lacerna. 26 In said case, the search was
conducted at a validly established checkpoint and was made in the regular
performance of the policemen's duty. Although it became intrusive when the
policemen opened his baggage, it was validated by the consent of appellant, who
testified in open court that he allowed such search because he had nothing to hide.
In the present case, there was no checkpoint established. The policemen stopped the
motorela and forthwith subjected the passengers to a search of their persons and
baggage. In contrast to the accused in Lacerna, herein appellant testified that he
openly objected to the search by asking for a warrant.
Without the illegally seized prohibited drug, the appellant's conviction cannot stand.
There is simply no sufficient evidence remaining to convict him. That the search
disclosed a prohibited substance in appellant's possession, and thus confirmed the
police officers' initial information and suspicion, did not cure its patent illegality. An
illegal search cannot be undertaken and then an arrest effected on the strength of
the evidence yielded by the search.
We should stress that the Court is not unmindful of the difficulties of law
enforcement agencies in suppressing the illegal traffic of dangerous drugs. However,
quick solutions of crimes and apprehensions of malefactors do not justify a callous
disregard of the Bill of Rights. Law enforcers are required to follow the law and to
respect the people's rights. Otherwise, their efforts become counterproductive. We
remind them of this recent exhortation by this Court: 27
". . . In the final analysis, we in the administration of justice would have no right to
expect ordinary people to be law-abiding if we do not insist on the full protection of
their rights. Some lawmen, prosecutors and judges may still tend to gloss over an
illegal search and seizure as long as the law enforcers show the alleged evidence of
the crime regardless of the methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law enforcement. Ironically, it only
fosters the more rapid breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within the parameters
set by the Constitution and the law. Truly, the end never justifies the means."
WHEREFORE, the appeal is hereby GRANTED. The assailed Decision is REVERSED
and SET ASIDE. Appellant is ACQUITTED. Unless convicted for any other crime or
detained for some lawful reason, Appellant Roel Encinada is ORDERED RELEASED
immediately.
SO ORDERED.
Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur.

12
(People us. Januario, 267 SCRA 608.)

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE JANUARIO y ROLDAN,


EFREN CANAPE y BAYOT, ELISEO SARITA @ TOTO, EDUARDO SARINOS and
SANTIAGO CID, accused, RENE JANUARIO Y ROLDAN and EFREN CANAPE y BAYOT,
accused-appellants.
The Solicitor General for plaintiff-appellee.
Jose C. Claro for Rene Januario y Roldan.
Florendo C. Medina for Efren Canape y Bayot.

SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; THE COURT MAY ALLOW THE
PROSECUTOR EVEN AFTER HE HAS RESTED HIS CASE OR EVEN AFTER THE DEFENSE
HAS MOVED FOR DISMISSAL, TO PRESENT INVOLUNTARY OMITTED EVIDENCE. —
Rule 119, Section 3 of the Rules of Court is ordinarily followed to insure the orderly
conduct of litigations to attain the magisterial objective of the Rules of Court to
protect the parties' substantive rights. However, strict observance of the Rules
depend upon the circumstances obtaining in each case at the discretion of the trial
judge. Thus, as early as 1917, this Court explained: ". . . The orderly course of
proceedings requires, however, that the prosecution shall go forward and should
present all of its proof in the first instance; but it is competent for the judge,
according to the nature of the case, to allow a party who has closed his case to
introduce further evidence in rebuttal. This rule, however, depends upon the
particular circumstances of each particular case, and falls within the sound discretion
of the judge, to be exercised or not as he may think proper." Hence, the court may
allow the prosecutor, even after he has rested his case or even after the defense has
moved for dismissal, to present involuntarily omitted evidence.
2. ID.; ID.; ALLOWING PROSECUTOR TO PRESENT ADDITIONAL EVIDENCE
EVEN AFTER HE RESTED HIS CASE DOES NOT DIVEST THE COURT A QUO OF
JURISDICTION. — The primary consideration is whether the trial court still has
jurisdiction over the case: Thus: "The claim that the lower court erred in allowing the
prosecuting attorney to introduce new evidence is devoid of any merit, for while the
prosecution had rested, the trial was not yet terminated and the cause was still
under the control and jurisdiction of the court and the latter, in the exercise of its
discretion, may receive additional evidence. Sec. 3(c), Rule 119 of the Rules of Court
clearly provides that, in the furtherance of justice, the court may grant either of the
parties the right and opportunity to adduce new additional evidence bearing upon the
main issue in question." Saunar's testimony was admitted in evidence before the trial
court rendered its Decision. Undoubtedly then, the court a quo retained its
jurisdiction even though the prosecution had rested its case.
3. ID.; EVIDENCE; CONFESSION DISTINGUISHED FROM ADMISSION. — An
admission which, under Section 26 of Rule 130 of the Rules of Court, is an "act,
declaration or omission of a party as to a relevant fact is different from a confession
which, in turn, is defined in Section 33 of the same Rule as the "declaration of an
accused acknowledging his guilt of the offense charged, or of any offense necessarily
included therein." Both may be given in evidence against the person admitting or
confessing. In People vs. Lorenzo, the Court explained that in a confession there is
an acknowledgment of guilt while in an admission the statements of fact by the
accused do not directly involve an acknowledgment of guilt or of the criminal intent
to commit the offense with which the accused is charged.

13
4. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO HAVE
COMPETENT AND INDEPENDENT COUNSEL PREFERABLY OF HIS OWN CHOICE; MERE
PRESENCE OF COUNSEL DURING CUSTODIAL INVESTIGATION DOES NOT
GUARANTEE OF FULL COMPLIANCE THEREOF, CASE AT BAR. — Proof of Saunar's
presence during the custodial investigation of appellants is, however, not a
guarantee that appellants' respective confessions had been taken in accordance with
Article III, Section 12 (1) of the Constitution. This constitutional provision requires
that a person under investigation for the commission of an offense shall have no less
than "competent and independent counsel preferably of his own choice." Elucidating
on this particular constitutional requirement, this Court has taught: "It is noteworthy
that the modifiers competent and independent were terms absent in all organic laws
previous to the 1987 Constitution. Their addition in the fundamental law of 1987 was
meant to stress the primacy accorded to the voluntariness of the choice, under the
uniquely stressful conditions of a custodial investigation, by according the accused,
deprived of normal conditions guaranteeing individual autonomy, an informed
judgment based on the choices given to him by a competent and independent
lawyer. Thus, the lawyer called to be present during such investigation should be as
far as reasonably possible, the choice of the individual undergoing questioning. If the
lawyer were one furnished in the accused's behalf, it is important that he should be
competent and independent, i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as distinguished from one who would merely be
giving a routine, peremptory and meaningless recital of the individual's constitutional
rights. In People v. Basay, this Court stressed that an accused's right to be informed
of the right to remain silent and to counsel 'contemplates the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of
an abstract constitutional principle.' Ideally, therefore, a lawyer engaged for an
individual facing custodial investigation (if the latter could not afford one) 'should be
engaged by the accused (himself), or by the latter's relative or person authorized by
him to engage an attorney or by the court, upon proper petition of the accused or
person authorized by the accused to file such petition. Lawyers engaged by the
police, whatever testimonials are given as proof of their probity and supposed
independence, are generally suspect, as in many areas, the relationship between
lawyers and law enforcement authorities can be symbiotic." . . . Under the
circumstances described by the prosecution however, he could not have been the
independent counsel solemnly spoken of by our Constitution. He was an applicant for
a position in the NBI and therefore it can never be said that his loyalty was to the
confessants. In fact, he was actually employed by the NBI a few months after.
5. ID.; ID.; RIGHTS TO REMAIN SILENT AND COUNSEL IMPLIES A CORRELATIVE
DUTY ON THE PART OF POLICE INVESTIGATOR DURING CUSTODIAL INVESTIGATION
TO EXPLAIN THOROUGHLY TO THE ACCUSED OF HIS CONSTITUTIONAL RIGHTS;
CASE AT BAR. — The right of a person under custodial investigation to be informed
of his rights to remain silent and to counsel implies a correlative obligation on the
part of the police investigator to explain and to contemplate an effective
communication that results in an understanding of what is conveyed. Appellant
Canape's sworn statement, which reads and sounds so lifeless on paper, fails to
reflect compliance with this requirement. Neither does the aforequoted testimony of
NBI Agent Toribio. Bearing in mind that appellant Canape reached only the fifth
grade, the NBI agents should have exerted more effort in explaining to him his
constitutional rights.
6. ID.; ID.; RAMIFICATION OF IRREGULARLY COUNSELLED CONFESSION OR
ADMISSION. — Because their uncounselled oral admissions in Naga City resulted in
the execution of their written confessions in Manila, the latter had become as

14
constitutionally infirm as the former. In People vs. Alicando, this Court explained the
ramifications of an irregularly counselled confession or admission: "We have not only
constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the
libertarian exclusionary rules known as the 'fruit of the poisonous tree' a phrase
minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United
States. According to this rule, once the primary source (the 'tree') is shown to have
been unlawfully obtained, any secondary or derivative evidence (the 'fruit') derived
from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as
a direct result of the illegal act, whereas the 'fruit of the poisonous tree' is the
indirect result of the same illegal act. The 'fruit of the poisonous tree' is at least once
removed from the illegally seized evidence, but is equally inadmissible. The rule is
based on the principle that evidence illegally obtained by the State should not be
used to gain other evidence because the originally illegally obtained evidence taints
all evidence subsequently obtained."
7. ID.; ID.; ADMISSION OF FACTS RELATED TO A CRIME, WITHOUT THE
ASSISTANCE OF COUNSEL, INADMISSIBLE IN EVIDENCE. — The law enforcement
agents' cavalier disregard of appellants' constitutional rights is shown not only by
their failure to observe Section 12 (1) of Article III of the Constitution. They have
likewise forgotten the third paragraph of Section 12 of the same article which
mandates that an admission of facts related to a crime must be obtained with the
assistance of counsel; otherwise it would be inadmissible in evidence against the
person so admitting.
8. ID.; ID.; VERBAL ADMISSION, WITHOUT THE ASSISTANCE OF COUNSEL,
INADMISSIBLE. — Verbal admissions, however, should also be made with the
assistance of counsel. Thus: "The verbal admissions allegedly made by both
appellants of their participation in the crime, at the time of their arrest and even
before their formal investigation, are inadmissible both as violative of their
constitutional rights and as hearsay evidence. These oral admissions, assuming they
were in fact made, constitute uncounselled extrajudicial confessions within the
meaning of Article III, Section 12 of the Constitution."
DECISION
PANGANIBAN, J p:
The 1987 Constitution was crafted and ordained at a historic time when our nation
was reeling from ghastly memories of atrocities, excesses and outright violations of
our people's rights to life, liberty and property; Hence, our bill of rights was worded
to emphasize the sanctity of human liberty and specifically to protect persons
undergoing custodial investigations from ignorant, overzealous and/or incompetent
peace officers. The Constitution so dearly values freedom and voluntariness that,
inter alia, it unequivocally guarantees a person undergoing investigation for the
commission of an offense not only the services of counsel, but a lawyer who is not
merely (a) "competent" but also (b) "independent" and (c) "preferably of his own
choice" as well.
In the case before us, the main evidence relied upon for the conviction of appellants
was their own extrajudicial confessions which admittedly were extracted and signed
in the presence and with the assistance of a lawyer who was applying for work in the
NBI. Such counsel cannot in any wise be considered "independent" because he
cannot be expected to work against the interest of a police agency he was hoping to
join, as a few months later he in fact was admitted into its work force. For this
violation of their constitutional right to independent counsel, appellants deserve
acquittal. After the exclusion of their tainted confessions, no sufficient and credible
evidence remains in the Court's records to overturn another constitutional right: the
right to be presumed innocent of any crime until the contrary is proved beyond

15
reasonable doubt.
This is an appeal from the Decision 1 of the Regional Trial Court of Cavite, Branch
XVIII in Tagaytay City, disposing of Criminal Case No. TG-1392-89, viz.:
"WHEREFORE, and premises considered, judgment is hereby rendered finding
accused:
(1) RENE JANUARIO Y ROLDAN
— and —
(2) EFREN CANAPE Y BAYOT
GUILTY beyond reasonable doubt of the crime of Violation of Sec. 14 last sentence of
R.A. No. 6539, otherwise known as the Anti-Carnapping Law and as charged against
them in the Information and pursuant to the said law, this Court hereby imposes
upon the said accused, the supreme penalty of Reclusion Perpetua or life
imprisonment.
Further, they are ordered to pay jointly and severally, but separately, the heirs of
their victims, namely, Geronimo Malibago and Andrew Patriarca, Jr., the sums of:
(a) P50,000.00 for moral damages;
(b) P50,000.00 for exemplary damages;
(c) P25,000.00 for actual damages,
and to pay the costs of this proceeding.
There being no evidence to warrant a finding of conviction beyond reasonable doubt,
judgment is hereby rendered ACQUITTING Accused SANTIAGO CID of the crime
charged. Being a detention prisoner, the City Warden of Tagaytay City is hereby
ordered to immediately release said person from his prison cell, unless he is therein
detained for any other cause.
SO ORDERED."
The Antecedents
On November 7, 1988, an Information signed by Assistant Provincial Fiscal Jose M.
Velasco, Jr., was filed against accused-appellants Rene Januario and Efren Canape,
and their co-accused Santiago Cid, Eliseo Sarita @ Toto and Eduardo Sarinos @ Digo
charging them with violation of Republic Act No. 6539 (Anti-Carnapping Law) 2
allegedly committed as follows:
"That on or about September 4, 1987, at Barangay Bulihan, Municipality of Silang,
Province of Cavite, the above named accused, together with Eliseo Sarita @ Toto and
Eduardo Sarinos who (sic) still at-large, conspiring and confederating together and
mutually helping one another, with intent to gain, by means of force, violence and
intimidation, did, then and there, willfully (sic), unlawfully and feloniously, after
stabbing to death the driver Gernonimo (sic) Malibago and conductor Andrew
Patriarca, take, steal and carry away and carnap, one Isuzu passenger type jeepney,
with plate No. DFB 550, owned by Doris and Victor Wolf, to their damage and
prejudice in the total amount of P124,000.00.
CONTRARY TO LAW." 3
Arraigned on February 7, 1989, appellants Januario and Canape, assisted by counsel
de oficio, pleaded not guilty. 4 On May 30, 1989, Cid, assisted by counsel de parte,
likewise entered a plea of not guilty. 5 Sarita and Sarinos remained at large. At the
trial, the prosecution presented the following witnesses: Myrna Temporas, NBI Agent
Arlis S. Vela, Vicente Dilanco Pons, Andrew Patriarca, Sr., Juliana Malibago, Atty.
Magno Toribio, and Atty. Carlos Saunar, documentary and other evidence tending to
prove the following:
Sometime in March 1988, Santiago Cid went to the house of prosecution witness
Vicente Dilanco Pons, a farmer engaged in the buy and sell business, in Camarines
Sur. Cid, Pons' cousin, asked Pons if he wanted to buy a jeepney. Pons replied that
he had no money but that he could help him find a buyer for the jeepney for the

16
price of P50,000.00. With Amador Alayan, one of the drivers of his son who was
around, Pons offered to look for a buyer of the jeepney provided that Cid would
entrust the vehicle to them. Cid agreed to the proposal. At that time, Pons did not
know who owned the jeepney, but he eventually offered it for sale to Myrna
Temporas who agreed to the purchase price of P65,000.00. However, Temporas paid
Pons only the amount of P48,500.00. 6
Myrna Temporas had a slightly different story. According to her, Pons said that the
jeepney was owned by his niece, Doris Wolf. Pons, purportedly acting upon the
instructions of Doris Wolf, borrowed from Myrna Temporas the amount of P48,500.00
and used the jeepney as a collateral. The amount was given to Pons in P10,000.00
cash and the balance in a check payable to Doris Wolf. The check was encashed as it
was cleared from Myrna Temporas' account. It bore a signature supposedly of Doris
Wolf at its back portion and a second endorsement by Pons who subsequently
deposited it in his account. cda
On September 11, Temporas asked Pons to secure a special power of attorney from
Doris Wolf. Pons promised to comply in one or two weeks. But Pons failed to pay the
indebtedness. So, Myrna Temporas repeatedly went to his house in Digmaan,
Camarines Sur to collect the amount borrowed but Pons always promised that he
himself would go to her house to pay. 7
Inasmuch as Pons also failed to produce a deed of sale covering the jeepney,
Temporas lodged a complaint against him for estafa before the NBI. 8 Acting on the
complaint, the NBI contacted the relatives of the owner of the jeepney who went to
Camarines Sur, identified the jeepney and informed the NBI that its driver (deceased
Geronimo Malibago) and conductor (deceased Andrew Patriarca, Jr.) had been killed
by carnappers. 9
Patriarca's widow also filed a complaint with the NBI. Upon investigation, an NBI
team led by Supervising Agent Magno Toribio found out that the carnapping of the
jeepney and the killing of Patriarca and Malibago were the "handiwork" of a group of
four (4) persons named Rene Januario, Efren Canape, Eliseo Sarita alias Toto, and
Eduardo Sarinos alias Digo. The team also discovered that the jeepney was disposed
of through Cid. 10
Appellants Januario and Canape, as well as Cid, were arrested in Camarines Sur. The
NBI then invited Pons and Temporas to shed light on the carnapping incident. The
jeepney was recovered in an auto shop with its engine partly dismantled. Upon being
informed by the NBI that the jeepney had been found, an insurance company
brought it back to Manila.
From the "oral investigation" they conducted at the Naga City NBI office on March
27, 1988, the team learned that Sarita and Sarinos took Patriarca and Malibago
inside a sugar plantation where presumably they were killed. Because appellants
volunteered that their companions were their neighbors in Paliparan, Dasmariñas,
Cavite who could be in Manila already, the NBI team decided to take down their
statements at the NBI head office in Manila. The team traveled with appellants to
Manila, arriving there at around 1:00 o'clock in the afternoon of March 28, 1988.
At the Taft Avenue head office of the NBI, the team took the statements of
appellants one at a time. They asked Atty. Carlos Saunar, who was "just around
somewhere," to assist appellants during the investigation. Agent Arlis Vela took the
statement of appellant Januario while Supervising Agent Toribio took that of Canape.
The first portion of the statement, Exhibit C, taken from appellant Januario reads:
"SINUMPAANG SALAYSAY NA IBINIGAY NI RENE JANUARIO Y ROLDAN SA HARAP NI
NBI AGENT ARLIS E. VELA NGAYONG IKA-28 NG MARSO 1988 SA NBI, NCR,
MANILA.
x------------------------------------------------------------------------x

17
1. TANONG Mr. RENE JANUARIO ipina-aalam namin sa iyo na ikaw ay
aming inuusig sa salang pagnakaw ng isang jeepney at pagkapatay sa driver at
conductor nito. Gusto naming malaman mo na ikaw ay hindi maaaring pilitin na
magbigay ng salaysay at kong (sic) sakaling magbibigay ka ng salaysay, ano mang
sasabihin mo rito ay pueding (sic) gamitin laban sa iyo sa ano mang caso.
Nauunawaan mo ba ito?
SAGOT Naiintiendihan (sic) ko.
2. T Kailangan mo ba ang tulong ng abogado sa pagtatanong na ito?
S Magsalaysay (sic) lang ako pag-may abogado ako.
3. T May abogado ka ba sa ngayon?
S Mayroon po si Atty. CARLOS SAUNAR ay nandito para tulongan (sic)
ako.
4. T Nanunumpa ka na magsasabi ng katotohanan, buong katotohanan at
wala ng iba kungdi katotohanan lamang sa pagtatanong na ito?
S Opo.
5. T Sabihin mo ang iyong pangalan at iba-ibang bagay tungkol sa iyong
pagkatao?
S RENE JANUARIO Y ROLDAN, 26 taong gulang, binata, isang (sic) buy
and sell hanapbuhay at naninirahan sa Puro Batya, Libmanan, Camarines Sur.
xxx xxx xxx 11
According to appellant Januario, two-weeks before September 1987, he was already
in the house of appellant Canape in Bgy. Palapala, Dasmariñas, Cavite to procure
chicken and "kalawit" for his business. He also went there because his new friends
named Toto Sarita and Digo Samera (sic), as well as appellant Canape, wanted him
to look for a buyer of a jeep. Appellant Januario asked for a photograph of the jeep
to assist him in making a canvass of buyers in Bicol but he was told that he would
have it later at night because they were then having drinks in the house of Toto.
After that drinking spree, the group agreed to fetch appellants Januario and Canape
at 4:00 o'clock the following morning. It was Digo Samera who fetched appellants
before they went to the house of Toto Sarita. Together, they went to GMA town in
Cavite. It was around 5:00 o'clock in the morning when they hailed a jeep from the
"looban." Thereafter, the following allegedly transpired:
"18. T Ano na ang nangyari noong kayo ay sumakay sa jeep?
S Ako ang naunang sumakay pagtigil noong jeep. Bago maka-alis ang
jeep nagsalita si TOTO SARITA na nasa baba pa kasama sina EFREN CANAPE at
DIGO na HINTAY ka muna may naiwanan pa ako.' Sumakay si Digo sa tapat ng
conductor na nasa loob ng jeep samantalang si TOTO ay pumuesto sa bandang
kanan sa unahan ng jeep at si EFREN ay sa bandang kaliwa rin ng jeep tapat ng
driver at sabay si EFREN at TOTO na sumakay sa unahan ng jeep at mabilis na
tinulak ni EFREN ang driver patungo kay TOTO na siyang tumutok, (sic) sa driver ng
isang sandata balisong 29. Habang nangyayari iyon ay tinutukan naman ni DIGO na
nasa loob ng jeep ang conductor na pinasubsub ang ulo habang tinutukan ng 29.
Ang sabi sa akin ni DIGO ay 'REN igapos mo ito' at inabutan niya ako ng isang
panyong panali. Sa aking kabiglaanan ako ay napasunod at tinali ko iyong conductor.
19. T Ano na ang sumunod na nangyari matapos matalian mo ang
conductor?
S Napansin ko na lang na maneho na ni TOTO Sarita ang jeep na
kanyang pinasibad habang ang driver ay nakatali na rin at ako naman ay sinabihan
ni DIGO na hawakan iyong conductor sa balikat habang tinutukan ng patalim ni
DIGO. Ang conductor ay nagsasalita na siya ay nasasaktan dahil nakatusok na ang
patalim sa kanyang leeg o batok.
20. T Ano ang nangyari matapos na matutukan ang conductor at driver at

18
habang nagmamaneho si TOTO?
S Mula sa lugar na iyon pagkaraan ng ilang minuto ay biglang iniliko sa
isang maliit na lupang kalsada na napapaligiran ng tubo at talahib at doon ay hininto
ang sasakyan.
21. T Ano na ang sumonod (sic) na nangyari sa lugar na iyon matapos na
maihinto ang jeep?
S Unang bumaba po ay si TOTO na hawak ang driver pababa at itinulak
ang driver sa may tobohan (sic). Si EFREN ay sumonod (sic) hanggang sa may gilid
ng karsada habang si TOTO ay tuloy sa tobohan (sic) na dala ang driver. Si DIGO
naman ay tinulak ang conductor hawak-hawak sa buhok at ang sabi naman sa akin
ay hawakan ko ang balikat. Kinuha sa akin ang conductor ni DIGO at dinala sa may
tubuhan (sic) at akin na lang narinig na ang pag-ungol ng conductor dahil malapit
lang iyon sa sasakyan.
22. T Nakikita mo ba sila DIGO at ang conductor habang siya ay umuungol?
S Hindi ko na po nakita kasi nasa tubohan na.
23. T Sila TOTO at ang driver nasaan sila habang naririnig mong umuungol
ang conductor?
S Pumasok po sa tubohan hindi ko na sila makita.
24. T Ano na ang nangyari matapos na dalhin ni TOTO ang driver at ni DIGO
naman ang conductor sa tobohan (sic)?
S Mga ilang minuto lang po ay bumalik na sila sa sasakyan at kami
sumakay na at si TOTO ang nagmaneho ng sasakyan at tuloy-tuloy na kami sa Bikol,
sa Libmanan, Camarines Sur.
25. T Noong kayo ay umalis sa tubohan na iyon, nasaan na noon ang driver
at ang conductor?
S Wala na po.
26. T May napansin ka ba kina DIGO at TOTO noong sila ay sumakay sa jeep
galing sa tubuhan (sic)?
S Humihingal sila po na parang pagod at napansin ko na may dugo ang
kamay ni DIGO at ang damit at pantalon naman ni TOTO ay may tilamsik (sic) ng
dugo.
xxx xxx xxx 12
Appellant Januario described the driver as more than fifty years old, of medium
build, and with gray hair and a fine nose. Upon reaching Lib-manan, they went
directly to Santiago Cid with whom appellant Januario had earlier conferred
regarding the sale of the jeep. Appellant Januario did not know to whom the jeep
was sold but he knew that Cid approached Vicente Pons. The latter gave appellant
Januario P1,000 cash and rice and eggs worth around P600. A second jeep was
brought by Toto and Digo to Roger Abajero. Cid brought both appellants to the house
of Roger. Later, the jeep was impounded at the NBI Naga City office.
Appellant Januario signed and thumbmarked his statement which was sworn before
NBI Executive Director Salvador R. Ranin. It was also signed by Atty. Carlos Saunar
"as counsel."
Appellant Canape's sworn statement, Exhibit I, was taken by Atty. Magno V. Toribio,
a supervising NBI Agent. Quoted in full, the statement reads:
"SINUMPAANG SALAYSAY NA IBINIGAY NI EFREN CANAPE y BAYOT KAY AGENTS
MAGNO V. TORIBIO AND TOMAS C. ENRILE, MGA AHENTE NG NBI DITO SA NCR,
NBI, MANILA, NGAYONG IKA 27 NG MARSO 1988.
1. TANONG Ginoong EFREN CANAPE y BAYOT, ikaw ay aming
iniimbistigahan ngayon tungkol sa pagkanakaw ng isang Izuzu (sic) type jipney sa
Silang, Cavite at sa pagkamatay ng conductor nito noong buwan ng Setyembre (sic)
1988. Bago ka namin tanungin aming ipinaalam sa iyo ang iyong mga karapatan sa

19
ilalim ng Saligang Batas. Una, ikaw ay may karapatan na huwag magbigay ng
salaysay sa imbistigasyon na ito, at manahimik. Ano mang sabihin mo dito ay
puweding gamitin laban sa iyo sa asunto kriminal o civil. Ikalawa, ikaw ay may
karapatan na kumuha ng iyong abogado upang tulungan ka sa imbistigasyon na ito.
At kung gusto mo pero wala kang pambayad sa sirbesyon (sic) nito, ikaw ay bibigyan
ng NBI ng libre. Matapos mong malaman ang iyong mga karapatan, ikaw ba ay
nakahandang magbigay ng kusang loob na salaysay?
SAGOT Opo, sir.
2. T Kung ganoon sabihin mo ang iyong buong pangalan, tirahan at iba
pang mga bagay-bagay na pweding pagkakakilalanan sa iyong pagkatao?
S Ako si EFREN CANAPE y BAYOT, 31 anyos ang idad (sic), kasal kay
AIDA ROLDAN, isang mag-sasaka (sic), nakatapos ng ika-limang baitang sa
elemantarya, at sa kasalukuyan ay naninirahan sa Bgy. Sibuho, Libmanan,
Camarines Sur.
3. T Ikaw ba ay may nalalaman sa pagkanakaw ng isang Malagueña type
jeepney sa Bulihan, Silang, Cavite noong buwan ng Septyembre 1988?
S Opo, sir.
4. T Kung ganoon sabihin mo sa mga imbistigador na ito kung paano ang
buong pangyayari?
S Kasi nuong (sic) minsan ako ay mapasyal sa Bgy. Crossing, sakop ng
Dasmariñas, Cavite noong mga buwan ng Agosto 1987, kami ay nagkita ng aking
kaibigan na si TOTO' SARETA at ang kanyang kasama na si DIGO (complete name
unknown) at ako ay kanyang sinabihan na humanap ng buyer ng isang Jeep. Kaya,
ng (sic) ako ay umuwi na ng Libmanan, Camarines Sur ako ay humananp (sic) ng
taong interesado na bumili ng nasabing jeep, katulung si RENE JANUARIO na taga
bayan ng Libmanan. Ang aming nakitang interesado sa jeep ay si SANTIAGO CID.
Kaya ang aming ginawa ni RENE ay bumalik sa Bgy. Crossing, Dasmariñas, Cavite
para ipaalam kina TOTO SARETA na kami ay nakakuha na ng buyer. Ng gabing yaon
na kami ay dumating kami ay niyaya nina TOTO na mag-inuman at habang kami ay
nag-iinuman sinabi ni TOTO na may makukuha na kami na jeep. Mga bandang alas
kuwatro ng madaling araw, kami ay niyaya na nina TOTO na kunin na ang jeep.
Kami ay lumakad na papuntang Bulihan, Silang, Cavite. Pagdating namin doon, kami
ay naghintay ng mga ilang minuto. Ng (sic) dumaan ang isang jeep na wala pang
(sic) pasahero, ito ay pinara ni DIGO at kami ay sumakay. Mga ilang minuto naman
ang lumipas, habang ang diyep (sic) ay tumatakbo papuntang Alabang ay naglabas
ng patalim sina TOTO at DIGO at tinutukan ang driver at ang kundoktor. Tapos kami
ni RENE ay sinabihan (sic) din nila na maglabas ng patalim at tutukan din ang driver
at ang kundoktor (sic). Pagdating namin sa Bgy. Maguyam, sakop din ng Silang,
sapilitang (sic) ibinaba nina TOTO, DIGO at RENE ang driver at ang kundoktor (sic)
at dinala sa loob ng tubuhan. Ako ay naiwan sa loob ng jeep. Hindi naman natagalan
ay lumabas na ang tatlo galing sa loob ng tubuhan, hindi na kasama ang driver at
ang kundoktor (sic). Tapos, narining ko kay TOTO na ayos na daw'. Ang sunod
naming ginawa ay pinatakbo na namin ang jeep Papuntang Libmanan. Pagdating
namin sa Libmanan kami ay dumerretso (sic) kay SANTIAGO CID at ibinigay na
namin sa kanya ang jeep. Ang sabi naman ni SANTIAGO ay dadalhin niya ang jeep
kay VICENTE PONS na taga Libmanan din.
5. T Alam mo ba ang nangyari sa driver at konduktor (sic) ng jeep na
inagaw niyo?
S Ang pag-kaalam ko ho sa sabi ni TOTO na 'ayos na' ang ibig sabihin ay
patay na sila.
6. T Sino naman ang VICENTE PONS na ito?
S Ang sabi sa amin ni SANTIAGO si VICENTE PONS ay ang kanyang

20
nakuhang buyer ng jeep.
7. Q Sa pagkaalam mo ba ay talagang binili ni VICENTE PONS ang jeep?
S Opo, sir.
8. T Magkano naman ang pagkabili ni VICENTE PONS?
A Hindi ko po alam kung magkano ang iksaktong halaga, pero ang
presyo sa amin ni SANTIAGO ay P25,000.00.
9. T Nang dalhin ba ninyo ang jeep kay SANTIAGO ay agad ninyong dinala
at pinagbili rin kay VICENTE PONS?
S Opo, ng araw din na iyon.
10. T Magkano ba ang paunang bayad, kung mayroon man, na ibinigay ni
VICENTE PONS sa inyo?
S Ang alam ko ho ay P4,000.00 ang ibinigay ni VICENTE PONS kay
SANTIAGO dahil siya ang kausap nito.
11. T Magkano naman ang halagang naparte mo?
S Ako ho ay binigyan ni SANTIAGO ng P1,000.00?
12. T Ito bang pag-pabili ninyo ng jeep kay VICENTE PONS ay may
kasulatan?
S Wala po.
13. T Kailan pa ang mga sumunod na bayad na ibinigay sa inyo ni VICENTE
PONS?
S Hindi ko na ho masyadong matandaan ang mga iksaktong oras na
kanyang pagbayad at kung magkano, basta ang pag-kaalam ko ay mga tatlong
beses lang siyang nag-hulog at iyon ay kanyang ibinibigay kay SANTIAGO. Si
SANTIAGO naman ang si-yang nag-bibigay (sic) sa amin.
14. T Ito bang si SANTIAGO CID at si VICENTE PONS ay alam kung saan at
paano ninyo nakuha ang jeep?
S Opo, sir.
15. T Nasaan na ngayon sina TOTO SARETA at DIGO?
S Sa Dasmariñas, Cavite ho.
16. T Hindi na ba sila napupuntang Libmanan?
S Bihira na ho sir. Pumupunta lang ho sila kung kukuha ng pera.
17. T Sa pagkaalam mo, mayroon pa ba silang ibang jeep na dinala sa
Libmanan?
S Mayroon pa ho akong nalaman kay SANTIAGO CID na may isa pang
jeep na dinala daw sina TOTO at DIGO sa kanya at kanya namang ibenenta kay Mr.
ROGELIO ABAJERO, na taga Libmanan din.
18. T Ano pa ang ibang alam mo tungkul (sic) dito sa pangalawang jeep na
ibenenta (sic) nila kay Mr. ABAJERO?
S Wala na ho sir.
19. T Iyung tungkol sa unang jeep na ibenenta kay Mr. VICENTE PONS, alam
mo ba kung nasaan na iyon ngayon?
S Hindi ko rin po alam kung saan dinala ni Mr. PONS
20. T Ito-bang sina TOTO SARETA at DIGO ay matagal mo nang kakilala?
S Matagal na ho sir, dahil sa ako ay ipinanganak din sa Dasmariñas,
Cavite at doon din lumaki. Sila ho ay aking mga kababayan at matalik kung mga
kaibigan.
21. T Nung ikaw ba ay sabihan nina TOTO na humanap ng buyer ng jeep
alam mo ba na ang jeep na iyon ay nanakawin lamang?
S Opo, sir.
22. T Pansamantala ay wala na muna akong itatanong sa iyo, ikaw ba ay
mayroon pa ibig sabihin?
S Wala na po, sir. KATAPUSAN NG SALAYSAY.

21
(Signed and thumbmarked)
EFREN B. CANAPE
Nagsasalaysay
SIGNED IN THE PRESENCE OF:
(Illegible signature) (Illegible signature)
SUBSCRIBED AND SWORN TO BEFORE ME this 27th day of March 1988 at NBI,
National Capital Region, Manila. I likewise certify that I have carefully examined the
herein affiant and that I am satisfied that he voluntarily executed his statement and
understood the same.
(Signed)
Atty. ARLIS E. VELA
(By Authority of Rep. Act 157)" 13
After the investigation, appellants went with the NBI agents in searching for their
companions. 14
Meanwhile, Andrew Patriarca, Sr. reported the disappearance of his son, Andrew, Jr.,
the jeepney and its driver to the police detachment in Bulihan, Silang, Cavite and the
police stations in Silang and Imus, Cavite. Two weeks after September 4, 1987, the
body of 23-year-old Andrew Patriarca, Jr. was found in a sugarcane plantation in
Maguyam. His head was severed from his body. 15 The body of the driver, Geronimo
Malibago, stepfather of Doris Wolf, the owner of the jeepney, 16 was recovered after
the harvest of sugarcane in the plantation 17 in Maguyam. 18 Malibago's widow
identified the body from its clothing. 19 cd
On September 12, 1989, the prosecution formally offered its evidence, 20 which the
court duly admitted. 21 For its part, the defense, through counsel, manifested its
intention to file a demurrer to evidence. However, because the defense had not yet
presented accused Cid, the court on November 21, 1989, ordered the cancellation of
his bail bond and gave his surety thirty days within which to show cause why
judgment against the bond should not be rendered. The defense counsel, Atty. Jose
Claro, was likewise required to explain why he should not be held in contempt of
court for his failure to file a demurrer to evidence. 22
For failure of the defense counsel to appear at the scheduled hearing dates and to
file the promised demurrer to evidence, the court on December 22, 1989, issued an
order stating that the "accused may no longer at this time be allowed to present
their Demurrer to Evidence." It scheduled dates for the presentation of defense
evidence and appointed Atty. Oscar Zaldivar as counsel de oficio for the defendants.
23
Nevertheless, on December 26, 1989, counsel for the defense Claro mailed a
"demurrer to evidence or motion to dismiss on (sic) insufficiency of evidence." 24 On
January 10, 1990, the trial court denied the motion finding that the demurrer did not
"contain any reason compelling enough to recall the previous order," disallowing the
filing of said pleading. 25
On February 8, 1990, upon the manifestation of Atty. Claro that appellants would no
longer present evidence, the trial court issued an order considering the case
terminated as far as appellants were concerned. However, it granted a "reservation"
to present evidence as regards Cid. The trial court further directed Atty. Claro to
present Cid before the court on March 9, 1990. It ordered the filing of memoranda
"as the case of accused Januario and Canope (sic) is now considered closed." It set
the "partial promulgation of judgment" on March 9, 1990 "insofar as the two (2)
accused are concerned." 26
On March 1, 1990, appellants' counsel filed their memorandum. 27
On March 9, 1990, the trial court did not make a "partial promulgation of judgment."
Instead, it ordered the "continuation of proceedings for purposes of rebuttal

22
evidence." 28
On the same day, the defense presented Santiago Cid as a witness. He testified that
a certain Raul Repe, Toto Sarita and Digo Sarreal approached him about the sale of
the jeepney. He referred them to Vicente Pons who he thought would buy the
vehicle. He knew appellants were also from Libmanan but did not see them during
the transaction for the sale of the jeepney. 29
On March 27, 1990, the Court denied defense counsel Claro's motion to cancel the
hearing scheduled for that day. Noting the presence of Atty. Carlos Saunar, a
prosecution witness whose attendance during scheduled trial dates had been
delayed, and citing the "imperatives of justice," the trial court issued an order
directing that the testimony of said witness should be heard that day. 30 In the
absence of the counsel of record for the defense, the trial court reiterated the
appointment of Atty. Oscar Zaldivar as counsel de oficio.
Atty. Saunar testified that he joined the NBI sometime in May or June 1988. In
March 1988, while still in private practice, he was at the NBI head office handling a
client case when Atty. Vela, an NBI agent, approached him. The latter and Atty.
Toribio introduced him to appellants and Cid. Vela and Toribio told him that the three
had verbally confessed to participation in a crime and that they needed his
assistance as they were about to execute their sworn statements. 31 Saunar agreed
to assist the three suspects and allegedly explained to them the consequences of
their confession. He also supposedly told them individually, and in Tagalog, their
constitutional rights, like their rights to be silent and to counsel and that whatever
they would say could be used against them. 32
Saunar identified his signature in the sworn statement of appellant Januario.
However, he could no longer recall which of the three accused was appellant Canape
although he admitted that the latter's face was "familiar." 33 He was certain,
however, that he participated in the taking of appellant Canape's sworn statement on
March 28, 1988. He admitted that his signature does not appear on appellant
Canape's sworn statement but he could "only surmise" that he did not sign the same
sworn statement because either it was not presented to him immediately after the
statement was taken or that it had been misplaced. 34
After receiving Saunar's testimony, the trial court asked the prosecution whether it
was presented as rebuttal testimony. Answering in the positive, the prosecutor
reminded the court that when Saunar could not be presented as a witness, he had
made a reservation to call him as "additional evidence for the prosecution and/or
rebuttal" testimony. Clarifying this, the court said that as against Cid, the testimony
was a principal one but a rebuttal as far as the appellants were concerned. 35
On May 11, 1990, the defense manifested that it was closing its case. The
prosecution having waived its right to present "any rebuttal evidence," the trial court
issued an order requiring the filing of the parties' respective memoranda. 36 On June
27, 1990, the trial court rendered the herein questioned Decision. 37
The Issues
In their separate briefs filed by their respective counsel (Atty. Jose C. Claro for
Januario and Atty. Florendo C. Medina for Canape), appellants ascribe basically two
errors against the trial court:
(1) The trial procedure, particularly the presentation and admission of the
testimony of Atty. Carlos Saunar, was irregular and prejudicial to the appellants; and
(2) The extrajudicial confessions of the appellants are inadmissible in evidence for
having been extracted in violation of their constitutional right to counsel.
Insisting that his guilt had not been proven beyond reasonable doubt, appellant
Januario contends that the trial court erred in admitting in evidence his sworn
statement before the NBI and the testimony of Atty. Saunar as rebuttal or additional

23
witness after the prosecution had rested its case, he (appellant Januario) had filed
his memorandum, and the decision had been scheduled for promulgation. 38
For his part, appellant Canape also claims that his guilt had not been proven beyond
reasonable doubt. He questions the trial court's having given "weight and sufficiency"
to his extrajudicial confession. 39
Appellant Januario contends that the trial court erred in allowing the presentation of
Saunar as a witness after the prosecution had closed its case and offered its
documentary evidence. Saunar could not in any guise be considered as a rebuttal
witness simply because there was no defense evidence to rebut.
The Court's Ruling
The First Issue: Order of Trial
The pertinent provisions of Rule 119 of the Rules of Court state:
"SEC. 3. Order of trial. — The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge, and in the proper
case, the civil liability.
(b) The accused may present evidence to prove his defense, and damages, if any,
arising from the issuance of any provisional remedy in the case.
(c) The parties may then respectively present rebutting evidence only, unless the
court, in the furtherance of justice, permits them to present additional evidence
bearing upon the main issue.
(d) Upon admission of the evidence, the cases shall be deemed submitted unless
the court directs the parties to argue orally or to submit memoranda.
(e) However, when the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the order of trial may be
modified accordingly." (Emphasis supplied.)
The trial procedure as outlined in this rule is ordinarily followed to insure the orderly
conduct of litigations to attain the magisterial objective of the Rules of Court to
protect the parties' substantive rights. 40 However, strict observance of the Rules
depend upon the circumstances obtaining in each case at the discretion of the trial
judge. Thus, as early as 1917, this Court explained:
". . . The orderly course of proceedings requires, however, that the prosecution shall
go forward and should present all of its proof in the first instance; but it is competent
for the judge, according to the nature of the case, to allow a party who has closed
his case to introduce further evidence in rebuttal. This rule, however, depends upon
the particular circumstances of each particular case, and falls within the sound
discretion of the judge, to be exercised or not as he may think proper." 41
Hence, the court may allow the prosecutor, even after he has rested his case or even
after the defense has moved for dismissal, to present in-voluntarily omitted
evidence. 42 The primary consideration is whether the trial court still has jurisdiction
over the case. Thus
"The claim that the lower court erred in allowing the prosecuting attorney to
introduce new evidence is devoid of any merit, for while the prosecution had rested,
the trial was not yet terminated and the cause was still under the control and
jurisdiction of the court and the latter, in the exercise of its discretion, may receive
additional evidence. Sec. 3(c), Rule 119 of the Rules of Court clearly provides that, in
the furtherance of justice, the court may grant either of the parties the right and
opportunity to adduce new additional evidence bearing upon the main issue in
question." 43
Saunar's testimony was admitted in evidence before the trial court rendered its
Decision. Undoubtedly then, the court a quo retained its jurisdiction even though the
prosecution had rested its case. As to appellants, Saunar was an additional
prosecution witness, not a rebuttal witness, because the defense waived presentation

24
of evidence after the prosecution had rested its case. 44 Saunar was, therefore, a
rebuttal witness with respect to accused Cid. 45
The Second Issue: Appellants' Right to Counsel
Proof of Saunar's presence during the custodial investigation of appellants is,
however, not a guarantee that appellants' respective confessions had been taken in
accordance with Article III, Section 12 (1) of the Constitution. This constitutional
provision requires that a person under investigation for the commission of an offense
shall have no less than "competent and independent counsel preferably of his own
choice." Elucidating on this particular constitutional requirement, this Court has
taught:
"It is noteworthy that the modifiers competent and independent were terms absent
in all organic laws previous to the 1987 Constitution. Their addition in the
fundamental law of 1987 was meant to stress the primacy accorded to the
voluntariness of the choice, under the uniquely stressful conditions of a custodial
investigation, by according the accused, deprived of normal conditions guaranteeing
individual autonomy, an informed judgment based on the choices given to him by a
competent and independent lawyer.
Thus, the lawyer called to be present during such investigation should be as far as
reasonably possible, the choice of the individual undergoing questioning. If the
lawyer were one furnished in the accused's behalf, it is important that he should be
competent and independent, i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as distinguished from one who would merely be
giving a routine, peremptory and meaningless recital of the individual's constitutional
rights. In People v. Basay, this Court stressed that an accused's right to be informed
of the right to remain silent and to counsel 'contemplates the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of
an abstract constitutional principle.'
Ideally, therefore, a lawyer engaged for an individual facing custodial investigation (if
the latter could not afford one) 'should be engaged by the accused (himself), or by
the latter's relative or person authorized by him to engage an attorney or by the
court, upon proper petition of the accused or person authorized by the accused to file
such petition. Lawyers engaged by the police, whatever testimonials are given as
proof of their probity and supposed independence, are generally suspect, as in many
areas, the relationship between lawyers and law enforcement authorities can be
symbiotic." 46
We find that Saunar was not the choice of appellant Januario as his custodial
investigation counsel. Thus, NBI Agent Arlis Vela testified:
"Q Now, considering that they were then under your custody, and under
investigation, were they represented by counsel during the time that you took their
statements?
A Yes, sir. They were.
Q Do you recall who was that counsel who represented them?
A Atty. Carlos Saunar, sir.
Q Was he the counsel of their own choice, or was the counsel furnished by your
office?
A Because they were not represented by counsel of their own choice, we got the
service of Atty. Carlos Saunar who helped them. 47
xxx xxx xxx
Q And Atty. Saunar is connected with the NBI?
A At that time, he was at the NBI Office. He was just somewhere around.
Q And it was the NBI who requested Saunar to assist Mr. Rene Januario in the
investigation?

25
A We requested him, because he was just around, sir." 48 (Emphasis supplied.)
As regards Saunar's assistance as counsel for appellant Canape, investigating NBI
Agent Magno Toribio testified as follows:
"Q Now, with regards to your advice that he has a right to counsel, and to seek
assistance of a counsel of his own choice if he does not have one, and to remain
silent, and if he does not have a lawyer, you will furnish one for him, now what was
his answer?
WITNESS:
According to him, he does not need a lawyer, but despite that refusal to have
a lawyer . . .
COURT:
That is not refusal. That is manifestation that he does not need a lawyer. He
did not refuse. He said, he does not need a lawyer.
WITNESS: (con't.)
Although, he does not need a lawyer, we provided him a lawyer by the name
of Atty. Carlos Saunar, who was present during the investigation, and who advised
him of the consequences of the statements that he will give, and he did not refuse.
FISCAL VELAZCO:
Q Now, how did you know that Atty. Saunar gave him advice, gave accused
Canape advice?
A Because we were present.
Q Now, when did Atty. Saunar give that advice to accused Canape, was it
before, during, or after the taking of this statement?
A Before, during, and after the taking of the statement.
Q Now, may we know from you why Atty. Saunar was present there?
A He was present there because he was then applying for the position of NBI
agent.
FISCAL VELAZCO:
Q Was he the only lawyer who was present there?
A I remember, Atty. Claro, sometimes is there, representing another client. 49
xxx xxx xxx
Q Now, Atty. Saunar is employed with the NBI office, am I right?
A Yes, sir.
Q When was he employed at the NBI office? Tell us the exact date?
COURT:
If you can.
WITNESS:
Maybe in September.
ATTY. CLARO:
Q 19?
A 1988.
Q But he was always frequent in the NBI office because was to be employed, is
that what you mean?
A He was applying.
Q And from where is he?
A I think he is from Bicol.
xxx xxx xxx
Q Now, how many times have you requested Atty. Saunar to assist a person
under your investigation in the NBI office, other than this?
A I cannot remember anymore.
Q You always ask him to assist if there is no lawyer available, or the person to
be investigated has no lawyer?

26
A If he is around." 50 (Emphasis supplied.)
Let us for the moment grant arguendo that Saunar's competence as a lawyer is
beyond question. Under the circumstances described by the prosecution however, he
could not have been the independent counsel solemnly spoken of by our
Constitution. He was an applicant for a position in the NBI and therefore it can never
be said that his loyalty was to the confessants. In fact, he was actually employed by
the NBI a few months after. As regards appellant Januario, Saunar might have really
been around to properly apprise appellant of his constitutional right as reflected in
the written sworn statement itself.
However, the same cannot be said about appellant Canape. Clearly, he was not
properly informed of his constitutional rights. Perfunctorily informing a confessant of
his constitutional rights, asking him if he wants to avail of the services of counsel
and telling him that he could ask for counsel if he so desires or that one could be
provided him at his request, are simply not in compliance with the constitutional
mandate. 51 In this case, appellant Canape was merely told of his constitutional
rights and posthaste, asked whether he was willing to confess. His affirmative
answer may not, by any means, be interpreted as a waiver of his right to counsel of
his own choice.
Furthermore, the right of a person under custodial investigation to be informed of his
rights to remain silent and to counsel implies a correlative obligation on the part of
the police investigator to explain and to contemplate an effective communication that
results in an understanding of what is conveyed. 52 Appellant Canape's sworn
statement, which reads and sounds so lifeless on paper, fails to reflect compliance
with this requirement. Neither does the aforequoted testimony of NBI Agent Toribio.
Bearing in mind that appellant Canape reached only the fifth grade, the NBI agents
should have exerted more effort in explaining to him his constitutional rights.
Moreover, there is enough reason to doubt whether appellant Canape was in fact and
in truth assisted by counsel. Atty. Saunar affirmed on the witness stand that he
assisted appellants on March 28, 1988. 53 However, the sworn statement itself
reveals that it was taken on March 27, 1988. No satisfactory explanation was made
by the prosecution on this discrepancy. All that Agent Vela stated was that they
conducted an oral investigation in Naga City on March 27, 1988 and that
investigation at the NBI Manila head office was made in the afternoon of March 28,
1988. 54
The law enforcement agents' cavalier disregard of appellants' constitutional rights is
shown not only by their failure to observe Section 12 (1) of Article III of the
Constitution. They have likewise forgotten the third paragraph of Section 12 of the
same article which mandates that an admission of facts related to a crime must be
obtained with the assistance of counsel; otherwise it would be inadmissible in
evidence against the person so admitting. 55
An admission which, under Section 26 of Rule 130 of the Rules of Court, is an "act,
declaration or omission of a party as to a relevant fact" is different from a confession
which, in turn, is defined in Section 33 of the same Rule as the "declaration of an
accused acknowledging his guilt of the offense charged, or of any offense necessarily
included therein." Both may be given in evidence against the person admitting or
confessing. In People vs. Lorenzo, 56 the Court explained that in a confession there
is an acknowledgment of guilt while in an admission the statements of fact by the
accused do not directly involve an acknowledgment of guilt or of the criminal intent
to commit the offense with which the accused is charged. cdasia
Appellants verbally intimated facts relevant to the commission of the crime to the
NBI agents in Naga City. This is shown by the testimony of NBI Agent Vela that,
based on the facts gathered from interviews of people in that city, they "invited" and

27
questioned appellants thus:
Q Now, tell us, what was your purpose in inviting these two (2) people?
A That was in connection with the vehicle I mentioned earlier, in connection
with the carnapping incident mentioned earlier.
Q You invited them in connection with the carnapping because you want to
know from them actually what they know about the carnapping, am I correct?
A Precisely, that is right." 57
Apparently attempting to avoid the questions on whether appellants admitted
complicity in the crime, Agent Toribio testified:
"ATTY. CLARO:
When you were conducting an investigation, and you saw me at the NBI
building, Naga City, you were referring to the investigation of Mr. Canape, am I
right?
A Yes. sir.
Q And that investigation you were conducting was reduced to writing, and that
is now Exhibit 'G', am I right?
A That is not.
Q But you investigated Mr. Canape in Naga City at the NBI building, am I right,
tell the Court?
A At that time, we were taking the statement of the woman, the complainant, in
the estafa case, and the other witnesses.
COURT:
You mean, at the time you investigated that estafa complaint, that was the
time when you also investigated Canape, is that what you mean?
FISCAL VELAZCO:
No, your Honor.
COURT:
But there is a question of counsel. You better clarify that.
WITNESS:
He was asking me if I had already taken the statement of Canape.
COURT:
That is it, sir, Naga City. That is the question.
WITNESS:
Not yet. We were only asking him.
ATTY. CLARO:
Q By him, whom are you referring to:
A The complainants and the witnesses, sir.
Q All right. You were with Atty. Vela when you conducted an investigation to
(sic) Mr. Canape, am I right? In Naga City?
WITNESS:
Yes, sir.
Q And Mr. Vela at that time, was also conducting an investigation to (sic) a
certain Rene Januario in Naga City, is that right?
A. No. We took the statement in Manila.
COURT:
Q You took the statement in Manila. How about in Naga, that is the question of
counsel?
A Naga, no statement yet.
ATTY. CLARO:
Q Mr. Toribio, because you were with Mr. Vela, Mr. Vela did not conduct any
investigation to (sic) Mr. Januario, one of the accused in this case, in Naga City? Tell
the Court?

28
A Not yet at that time, because it was useless. The crime was committed in
Silang, Cavite. They will have to be brought to Manila for the appropriate Judge or
Fiscal.
COURT:
Q So, you are claiming that you did not conduct any investigation of Canape?
A We conducted an investigation. When we took the statement of the other
witnesses, complainant and witnesses.
COURT:
Does that satisfy you?
ATTY. CLARO:
No.
COURT;
Please clarify the question.
WITNESS: (con't.)
It is true that we were sometimes talking with those people, but not
investigating them yet." 58 (Emphasis supplied.)
Note should also be taken of the fact that according to Atty. Saunar, when he
acceded to be the custodial investigation counsel of appellants, the latter had already
confessed. Thus:
"COURT:
Q There is one thing that he would like to add, that I talked to the accused one
by one, you want to add something?
A And I confirmed with them whether they are confessing to their crime, and
they said yes. In fact, from what I observed, they have already confessed to the NBI
agents.
COURT:
Q All of them confessed?
A Yes, your Honor, because they also told me what happened.
FISCAL VELAZCO:
Q Now, when they informed you that they intend to confess, now, did you
explain to them, to the accused or to the persons under investigation the
consequences of confessing?
A Yes, that is basic. I informed them of their rights to remain silent and to
counsel, and whatever they will confess there will be used against them during the
trial of this case.
Q How about that ultimate consequence of admission?
A Yes. I told them that if they confess, they will have to go to prison.
Q And what were their answers?
A Actually, they have already confessed to their crime before I talked to them.
xxx xxx xxx
ATTY. ZALDIVAR:
Your Honor, the witness has just answered during the preliminary question of
the Fiscal that at the time his assistance was sought by the NBI, the accused had in
fact already confessed.
COURT:
Q I am now asking him, have you said that?
A They have already confessed.
ATTY. ZALDIVAR:
We can review the transcript of stenographic notes.
COURT:
Q What do you mean by that?
A They were still confessing at that time, your Honor.

29
ATTY. ZALDIVAR:
I just want to manifest into the record that they have already confessed; that
the witness has just repeated the word.
COURT:
But there is an explanation by him. Put that on record, all of them.
FISCAL VELAZCO:
Q Now, did you verify whether that confession was only verbal or in writing?
A That was only verbal that is why there is a need for the sworn statement to
be taken. That was the time that I was telling them that they can be put to jail." 59
(Emphasis supplied.)
It is therefore clear that prior to the execution of the sworn statements at the NBI
head office, appellants had already made verbal admissions of complicity in the
crime. Verbal admissions, however, should also be made with the assistance of
counsel. Thus:
"The verbal admissions allegedly made by both appellants of their participation in the
crime, at the time of their arrest and even before their formal investigation, are
inadmissible, both as violative of their constitutional rights and as hear-say evidence.
These oral admissions, assuming they were in fact made, constitute uncounselled
extrajudicial confessions within the meaning of Article III, Section 12 of the
Constitution." 60
That appellants indeed admitted participation in the commission of the crime in Naga
City is shown by the fact that the NBI agents brought them to Manila to facilitate
apprehension of the other culprits who could be either in Cavite or Manila. Because
their uncounselled oral admissions in Naga City resulted in the execution of their
written confessions in Manila, the latter had become as constitutionally infirm as the
former. In People vs. Alicando, 61 this Court explained the ramifications of an
irregularly counselled confession or admission:
"We have not only constitutionalized the Miranda warnings in our jurisdiction. We
have also adopted the libertarian exclusionary rules known as the 'fruit of the
poisonous tree,' a phrase minted by Mr. Justice Felix Frankfurter in the celebrated
case of Nardone v. United States. According to this rule, once the primary source
(the 'tree') is shown to have been unlawfully obtained, any secondary or derivative
evidence (the 'fruit') derived from it is also inadmissible. Stated otherwise, illegally
seized evidence is obtained as a direct result of the illegal act, whereas the 'fruit of
the poisonous tree' is the indirect result of the same illegal act. The 'fruit of the
poisonous tree' is at least once removed from the illegally seized evidence, but is
equally inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence subsequently obtained."
Appellants might have indeed committed the crime in concert with Eliseo Sarita and
Eduardo Sarinos. However, what could have been their valuable admissions and
confessions as far as the prosecution was concerned were sullied and rendered
inadmissible by the irregular manner by which the law enforcement agents extracted
such admissions and confessions from appellants. Without such statements, the
remaining prosecution evidence — consisting mostly of hearsay testimony and
investigation reports — is sorely inadequate to prove appellants' participation in the
crime.
Notably, these law enforcers did not only defy the mandate of Section 12 of the Bill
of Rights but, after making "inquiries" from appellants about the crime, they likewise
illegally detained appellants as shown by the admission of one of the NBI agents that
appellants were deprived of their liberty while in their custody. 62 Appellants were
even made to travel for ten (10) hours 63 from Naga City to Manila just so their

30
formal confessions could be executed in the latter city. According to NBI Agent Vela,
they "actually arrested" the appellants when the court issued the warrant for their
arrest. 64 The records show however that the NBI turned appellants over to the
Municipal Circuit Trial Court of Silang-Amadeo in Cavite only on March 30, 1989. On
the same day, the same court turned them back to the NBI for "detention during
pendency of the case." 65
Epilogue
The Court understands the difficulties faced by law enforcement agencies in
apprehending violators of the law especially those involving syndicates. It
sympathizes with the public clamor for the bringing of criminals before the altar of
justice. However, quick solution of crimes and the consequent apprehension of
malefactors are not the end-all and be all of law enforcement. Enforcers of the law
must follow the procedure mandated by the Constitution and the law. Otherwise,
their efforts would be meaningless. And their expenses in trying to solve crimes
would constitute needless expenditures of taxpayers' money.
This Court values liberty and will always insist on the observance of basic
constitutional rights as a condition sine qua non against the awesome investigative
and prosecutory powers of government. The admonition given by this Court to
government officers, particularly those involved in law enforcement and the
administration of justice, in the case of People vs. Cuizon, 66 where NBI agents
mishandled a drug bust operation and in so doing violated the constitutional
guarantees against unlawful arrests and illegal searches and seizures, is again called
for and thus reiterated in the case at bench. to wit:
". . . In the final analysis, we in the administration of justice would have no right to
expect ordinary people to be law-abiding if we do not insist on the full protection of
their rights. Some lawmen, prosecutors and judges may still tend to gloss over an
illegal search and seizure as long as the law enforcers show the alleged evidence of
the crime regardless of the methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law enforcement. Ironically, it only
fosters the more rapid breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within the parameters
set by the Constitution and the law. Truly, the end never justifies the means." 67
WHEREFORE, the questioned Decision of the Regional Trial Court of Cavite, Branch
18 in Tagaytay City, is hereby REVERSED and SET ASIDE. Appellants Rene Januario
and Efren Canape are ACQUITTED. Let a copy of this Decision be furnished the
Director General, Philippine National Police and the Director, National Bureau of
Investigation in order that Eliseo Sarita and Eduardo Sarinos, who are still at large,
may be apprehended and this time properly investigated and prosecuted.
The accused-appellants are hereby ORDERED RELEASED immediately unless they are
being detained for some other legal cause.
SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Francisco, JJ ., concur.

III. (People us. Gomez, 270 SCRA 433.)

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO GOMEZ and FELIPE


IMMACULATA, accused, FELIPE IMMACULATA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Rodriguez Manlapaz Verano Law Offices for accused-appellant.
SYLLABUS

31
1. CRIMINAL LAW; CONSPIRACY; IT IS ESSENTIAL THAT CONSCIOUS DESIGN
TO COMMIT AN OFFENSE MUST BE ESTABLISHED AND SHOULD BE PROVED IN THE
SAME MANNER AS THE CRIMINAL ACT ITSELF. — Conspiracy is deemed to arise — ".
. . 'when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it.' Conspiracy is not presumed. Like the physical acts
constituting the crime itself, the elements of conspiracy must be proven beyond
reasonable doubt. While conspiracy need not be established by direct evidence, for it
may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together, however, the evidence therefore must
reasonably be strong enough to show a community of criminal design." Conspiracy,
to be the basis for a conviction, should be proved in the same manner as the criminal
act itself. It is also essential that a conscious design to commit an offense must be
established. Conspiracy is not the product of negligence but of intentionality on the
part of the cohorts.
2. ID.; ID.; ASSUMED INTIMACY DOES NOT GIVE [THAT MUCH] SIGNIFICANCE
TO THE EXISTENCE OF CRIMINAL CONSPIRACY. — The trip to Bangkok of appellant
and his co-accused might perhaps elicit suspicion on the real nature of his
association with David, but an assumed intimacy between two persons of itself does
not give that much significance to the existence of criminal conspiracy. Conspiracy
certainly transcends companionship.
3. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; ACCUSED ARRESTED
ABROAD IS ALSO ENTITLED TO HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND TO
REMAIN' SILENT. — While the sworn statement taken from appellant by an NBI
agent at the Stanley Prison in Hongkong during his incarceration was not made the
basis for Immaculata's conviction by the court a quo, a word could be said about the
manner in which it was procured. It would seem that appellant was merely apprised
in general terms of his constitutional rights to counsel and to remain silent. He then
was asked if he would be willing to give a statement. Having answered in the
affirmative, the NBI investigating agent asked him whether he needed a lawyer. This
procedure hardly was in compliance with Section 12(1), Article III, of the
Constitution which requires the assistance of counsel to a person under custody even
when he waives the right to counsel. It is immaterial that the sworn statement was
executed in a foreign land. Appellant, a Filipino citizen, should enjoy these
constitutional rights, like anyone else, even when abroad.
4. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; THE ONUS PROBANDI IN
ESTABLISHING THE GUILT OF AN ACCUSED FOR A CRIMINAL OFFENSE LIES WITH
THE PROSECUTION. — Under our laws, the onus probandi in establishing the guilt of
an accused for a criminal offense lies with the prosecution. The burden must be
discharged by it on the strength of its own evidence and not on the weakness of the
evidence for the defense or the lack of it. Proof beyond reasonable doubt, or that
quantum of proof sufficient to produce a moral certainty that would convince and
satisfy the conscience of those who are to act in judgment, is indispensable to
overcome the constitutional presumption of innocence.
5. ID.; ID.; AS BETWEEN PRESUMPTION OF INNOCENCE AND GUILT, THE
PRESUMPTION OF INNOCENCE PREVAILS. — When the circumstances obtaining in a
case are capable of two or more inferences, one of which is consistent with the
presumption of innocence while the other is compatible with guilt, the presumption
of innocence must prevail and the court must acquit.
DECISION
VITUG, J p:
Quite unfortunately, in the war on drugs, almost invariably, it is the little fellow who
easily gets the axe but the barons come out unscathed.

32
Accused Eduardo Gomez, a bartender, and Felipe Immaculata, a former bus driver,
were implicated in the crime of transporting twenty (20) kilograms of heroin,
estimated to be worth $40,000,000.00, 1 contained in two golfbags. Arraigned, tried
and ultimately convicted, Gomez and Immaculata were each meted the penalty of
reclusion perpetua and ordered to pay a P20,000.00 fine by the Regional Trial Court
of Pasay City, Branch 113, 2 in Criminal Case No. 90-4717.
Also charged, along with the duo, with having violated Section 4, Article II, in
relation to Section 21, Article IV, of Republic Act No. 6425 (the Dangerous Drugs Act
of 1972), as amended, were Aya Yupangco, Art David, Lito Tuazon and Benito
Cunanan, who all were able to evade arrest. Gomez, an American citizen of Filipino
ancestry, surrendered to the officer-in-charge of the then Clark Air Force Base in
Angeles City, while Immaculata was apprehended by agents of the National Bureau
of Investigation ("NBI").
Gomez and Immaculata entered a plea of "not guilty" to the accusation. 3 The
prosecution moved to discharge Gomez so that he could be a state witness. 4 The
motion was strongly opposed by Immaculata. 5 Eventually, the trial court refused to
discharge Gomez holding that, among other things, "it (was) evident throughout his
affidavit that his only purpose in executing the same was to exculpate himself and
(to) lay the blame on his co-accused." 6
The events that transpired leading to the filing of the charges were recounted in
good detail during the trial of the case.
On 27 February 1990, David, an employer 7 of Immaculata sent the latter to
Bangkok, Thailand, to canvass ready-to-wear clothes. 8 David and Gomez followed
Immaculata about a week later (04 March 1990). Immaculata fetched the two at the
Bangkok Airport. Immaculata, David and Gomez proceeded to and stayed at the
Union Towers Hotel. 9 After two days, they transferred to the apartment of one Lito
Tuazon where they spent the rest of their stay in Bangkok. 10
On 14 March 1990, Immaculata, Gomez and Aya Yupangco left Bangkok and boarded
Manila-bound flight numbered PR-731. Immaculata and Yupangco occupied seats No.
52A and No. 54D. Gomez was on the same flight. 11 He checked-in two golfbags,
and he was issued interline claim tags No. PR 77-28-71 12 and No. 77-28-72. 13
In Manila, Gomez deposited the two golfbags with the interline baggage room for his
connecting flight from Manila to San Francisco via United Airlines ("UAL") flight
numbered 058 scheduled to depart the following morning (15 March 1990). The
golfbags were kept in the transit rack baggage along with other pieces of luggage
destined for San Francisco via the UAL flight. 14
Well before flight time on 15 March 1990, Romeo Dumag, a customs policeman at
the Ninoy Aquino International Airport ("NAIA"), was requested by Customs Collector
Edgardo de Leon to help facilitate the checking-in of Eduardo Gomez. Dumag sought
from his security officer, a certain Capt. Reyes, the latter's permission. Having
received the go-signal, Dumag accepted from De Leon the ticket and passport of
Gomez. Dumag proceeded to the UAL check-in counter. The airline's lady staff,
Annabelle Lumba, directed Dumag to first claim the passenger's items to be
checked-in at the interline baggage room. 15
At the interline baggage room, Dumag spoke to Michael Angelo Benipayo, a PAL
employee assigned at the NAIA central baggage division and baggage handling
section, and presented the two claim tags of Gomez together with the latter's
passport and plane ticket. Convinced that Dumag had been duly authorized to
retrieve the baggage, Benipayo released, upon the approval of a customs examiner
named Nick, 16 the two golfbags wrapped in blue cloth. To acknowledge the release,
Dumag affixed his signature 17 to the "unclaimed baggage/transit list." 18
PAL loader Edgardo Villafuerte helped carry the golfbags to the UAL check-in counter.

33
Annabelle Lumba attached a San Francisco laser tag (UA Tag No. 594513 and Tag
No. 594514) and wrote the name "Gomez" on each side of the golfbags. She then
handed to Dumag the boarding pass and UAL plane ticket for Gomez. 19 Dumag
proceeded to Patio Manila, a restaurant at the NAIA, where he turned over to
Collector De Leon the travel papers of Gomez. 20
Gomez failed to board the UAL flight. The two golfbags were off-loaded from the
aircraft. At around four o'clock in the afternoon, PAL staff Dennis Mendoza brought
the golfbags back to the check-in counter for a security check-up. The x-ray machine
showed unidentified dark masses. Alarmed, Mendoza immediately relayed the
information to Capt. Ephraim Sindico of the 801st Aviation Security Squadron of the
Philippine Air Force Security Command ("PAFSECOM") then deployed at the NAIA.
Capt. Sindico rushed to the check-in area. He instructed his men to get the golfbags
pass through the x-ray machine once again. Satisfied that something was indeed
wrong, Capt. Sindico reported the matter to Col. Claudio Cruz who ordered his men
to have the golfbags go, for the third time, through the x-ray machine. The
unidentified dark masses having been definitely confirmed, Col. Cruz ordered his
men to open the glued bottom zipper of the golfbags. The golfbags yielded thirty-one
single packs, 21 each with an approximate size of 1" x 6" x 4," containing a white
powder substance suspected to be "heroin" with a total weight of 20.1159 kilograms.
22 The examination by the PAFSECOM personnel was witnessed by the NAIA
manager, a representative of the UAL and other customs personnel. 23
Initial PAFSECOM investigation established that the two golfbags were interline
baggage which arrived on 14 March 1990 on board PAL flight PR-731 from Bangkok.
The identity of the owner was traced, through UAL claim tags No. 594513 and No.
594514, to Gomez. Before turning over the golfbags and the thirty-one packs of
white powder, together with the UAL claim tags, to the authorities, 24 the packs
were first individually weighed at the office of the District Collector of NAIA in the
presence and with the participation of three personnel of the Bureau of Customs and
three agents of the NBI.
Leonora Vallado, chief of the NBI Forensic Chemistry Section, who later conducted a
laboratory examination on the white powder, issued a report, dated 23 March 1990,
to the effect that the substance was positive "for the presence of HEROIN HCL in the
amount of 70.6% and 86.1% respectively." 25
Immaculata and Gomez denied having anything to do with the confiscated drug.
A former shuttle bus driver for six years, Immaculata said he was hired by David to
be a "stay-in driver" with a monthly salary of P2,000.00. He would at times be asked
to likewise do some special errands for David. 26
Gomez, on his part, stated that he had met David for the first time in 1986 on board
a plane flight from the Philippines to Los Angeles, U.S.A. Gomez was a bartender at
the Horseshoe Hotel in Las Vegas, while David was a jewelry trader in Texas and Los
Angeles. The two got to be on friendly terms after their second chance meeting at a
wedding anniversary celebration in Los Angeles. On Mondays thereafter, Gomez
would meet David in Las Vegas to play golf with Benny Cunanan. 27 Once, Gomez
was asked if he would be willing to "bring in" some dollars to the Philippines. Gomez
showed no interest to accept the deal until some time in 1990 when he finally
agreed. Gomez was to receive a free round-trip ticket (US-Manila-US) plus
$2,500.00. Upon his return to the U.S., Gomez would then get another $2,500.00.
During the first week of February, 1990, Cunanan told Gomez that he had bought
himself a golf set which Gomez could use in the Philippines. A few weeks later, one
Andy Bombao requested Gomez to also take with him another golf set for Cunanan.
Gomez left the U.S. for the Philippines on 26 February 1990. He checked-in the two
golfbags and a luggage. He handcarried a small traveler's bag and the US$30,000.00

34
cash he was commissioned to bring with him. At the NAIA, Gomez was met by David
and Immaculata. The three proceeded to a house in Bicutan where David took the
golfbags and the dollars. 28 From Bicutan, Gomez, David and Immaculata went to
Nasugbu, Batangas, where they stayed for about two or three days. From Nasugbu,
they went to Vito Cruz and then back to Bicutan. Here, Gomez was handed two (2)
plane tickets, a PAL round-trip ticket to Bangkok (Manila-Bangkok-Manila) and a UAL
ticket for San Francisco, U.S.A. 29
On 27 February 1990, David sent Immaculata to Bangkok to canvass prices of ready-
to-wear clothes. Immaculata stayed at the Asia Hotel for four days. On the fourth
day of his stay, Immaculata called David to inform him that he was running out of
cash. David instructed Immaculata to wait for him in Bangkok and to meanwhile stay
with Lito Tuazon in the latter's apartment. cdt
David and Gomez left for Thailand on 04 March 1990 bringing with them a golf set
each. Immaculata fetched the two at the Bangkok Airport and brought them to the
Union Towers Hotel where they stayed for two days. On the third day, David and
Gomez played golf while Immaculata cleaned and prepared Lito Tuazon's apartment
for David where the latter transferred and spent the rest of his stay in Bangkok. 30
David returned to Manila on 09 March 1990. 31 On 10 March 1990, Lito Tuazon had
the tickets of Gomez and Immaculata also confirmed for the return trip to Manila.
David, who was by then in Manila, called up Gomez to tell him that Aya Yupangco
was arriving in Thailand and that the latter should not be allowed to see the
golfbags. 32 Gomez became suspicious but David assured Gomez that the golfbags
merely contained precious jewels and stones.
On 12 March 1990, Yupangco, who claimed to be a NARCOM agent, arrived in
Thailand. He had dinner with Gomez. 33 The following day, Gomez was told by
Immaculata to pick up the golfbags from Lito Tuazon's apartment. On 14 March
1990, Gomez picked up the golfbags. He noticed that the golfbags were heavier than
usual. Tuazon explained casually to Gomez that there were pieces of jewelry and
precious stones inside the golfbags. At the Bangkok Airport, Tuazon checked-in the
golfbags for Gomez. 34 Immaculata and Yupangco took the same flight. Gomez was
met at the NAIA lobby by David.
On 15 March 1990, Charlie Rivera and David took the ticket and passport of Gomez
in order to confirm the latter's flight to the U.S. The following day, 16 March 1990,
Rivera informed Gomez that he could not take his flight to San Francisco. Gomez
confronted David about the matter. The latter promised to clear up things and
invited David to Nasugbu where they stayed until 21 March 1990. 35 Thereafter,
Gomez stayed with a certain Jhun Guevarra at Bicutan. It was there that Gomez
called up his stepfather and told him about the situation he was in. Gomez's
stepfather convinced him to give himself up to the American authorities. On 23
March 1990, Gomez, his stepfather and his half-brother named Frankie, went to the
then officer-in-charge of Clark Airbase in Angeles City. The latter turned over custody
of Gomez to the Drug Enforcement Agency ("DEA") of the United States in Manila.
The DEA, in turn, surrendered him to the NBI. 36
Meanwhile, on 22 March 1990, David and Immaculata left for Hongkong reportedly
to get some spare parts for David's Mercedes Benz car. 37 In Hongkong, after buying
the car spare parts, David and Immaculata went to the U.S. Department of Justice in
Hongkong. While waiting for David, Immaculata was confronted by a group of
people, who turned out to be from the Hongkong Immigration Office, requesting for
his travel papers. Immaculata was brought in for investigation because of an expired
visa, then turned over to the police authorities and finally to the court which decreed
his imprisonment.
In the Hongkong prison, Immaculata was visited by NBI agents for his implication in

35
the "heroin" case. He denied the accusation. Later, he agreed, without the assistance
of counsel, to execute a sworn statement at the Stanley Prison. After his prison
term, Immaculata was deported to Manila. 38 According to the NBI, when
Immaculata was apprehended by the Hongkong immigration authorities, he and
David were preparing to leave for Mexico. 39
The trial court found Gomez and Immaculata guilty beyond reasonable doubt of the
crime charged. While Gomez and Immaculata filed separate notices of appeal to this
Court from their conviction, 40 only Immaculata, however, filed his brief. 41 Gomez,
assisted by counsel, filed a "manifestation of withdrawal of appeal" 42 to which the
Solicitor General interposed no objection. 43 The Court would only thus consider the
appeal of Immaculata.
In his appeal, Immaculata 44 insists that the trial court has erred in including him in
the drug conspiracy and in admitting in evidence his sworn statement taken, without
the assistance of counsel, by an NBI agent at the Stanley Prison in Hongkong.
Unquestionably, heroin, a prohibited drug, was being transported when discovered
by the authorities at the NAIA. That the contraband failed to reach its final
destination would not preclude the commission of the crime of transporting illegal
drugs; the fact of actual conveyance would suffice to support a finding of guilt. 45
The trial court found appellant Immaculata to have been part of the conspiracy in the
illegal traffic of drugs, and it deduced appellant's conspiratorial participation in the
crime from the following facts: (1) appellant was not only an employee but a
business partner or associate of David; (2) appellant, Yupangco and Gomez were all
on board the same PAL flight No. PR-731 from Bangkok to Manila in which flight the
golfbags containing the heroin were checked-in, and (3) all three stayed in one
apartment while in Bangkok.
Conspiracy is deemed to arise —
". . . 'when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.' Conspiracy is not presumed. Like the physical
acts constituting the crime itself, the elements of conspiracy must be proven beyond
reasonable doubt. While conspiracy need not be established by direct evidence, for it
may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together, however, the evidence therefore must
reasonably be strong enough to show a community of criminal design." 46
Conspiracy, to be the basis for a conviction, should be proved in the same manner as
the criminal act itself. It is also essential that a conscious design to commit an
offense must be established. Conspiracy is not the product of negligence but of
intentionality on the part of the cohorts. 47
Appellant, it might be true, was an incorporator, along with David, of AD-333, Inc.;
however, nothing could be gathered from the records to show that the corporation
was engaged in or used at one time or another for any unlawful purpose, let alone in
the illegal traffic of drugs. It would, in fact, appear that appellant was made to be a
signatory of the incorporation papers of AD-333, Inc., only because David needed to
comply with the minimum number of incorporators required by law for its
registration. 48
The trip to Bangkok of appellant and his co-accused might perhaps elicit suspicion on
the real nature of his association with David, but an assumed intimacy between two
persons of itself does not give that much significance to the existence of criminal
conspiracy. Conspiracy certainly transcends companionship. 49
While the sworn statement taken from appellant by an NBI agent at the Stanley
Prison in Hongkong during his incarceration was not made the basis for Immaculata's
conviction by the court a quo, a word could be said about the manner in which it was
procured. It would seem that appellant was merely apprised in general terms of his

36
constitutional rights to counsel and to remain silent. He then was asked if he would
be willing to give a statement. Having answered in the affirmative, the NBI
investigating agent asked him whether he needed a lawyer. Appellant answered:
"S. Sa ngayon po ay hindi na at totoo lang naman ang aking sasabihin. Kung
mayroon po kayong tanong na hindi ko masasagot ay sasabihin ko na lang po sa
inyo." 50
After that response, the investigation forthwith proceeded. This procedure hardly
was in compliance with Section 12(1), Article III, of the Constitution which requires
the assistance of counsel to a person under custody even when he waives the right
to counsel. 51 It is immaterial that the sworn statement was executed in a foreign
land. Appellant, a Filipino citizen, should enjoy these constitutional rights, like
anyone else, even when abroad.
Under our laws, the onus probandi in establishing the guilt of an accused for a
criminal offense lies with the prosecution. The burden must be discharged by it on
the strength of its own evidence and not on the weakness of the evidence for the
defense or the lack of it. Proof beyond reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would convince and satisfy the
conscience of those who are to act in judgment, is indispensable to overcome the
constitutional presumption of innocence.
Here, it is not unlikely for one to suspect that appellant has had an inkling on the
existence of the conspiracy but the essential connecting link showing a definite
community of design between him and the others just has not been adequately
shown. When the circumstances obtaining in a case are capable of two or more
inferences, one of which is consistent with the presumption of innocence while the
other is compatible with guilt, the presumption of innocence must prevail and the
court must acquit. 52
WHEREFORE, the judgment of the trial court convicting appellant Felipe Immaculata
of the crime charged is hereby REVERSED and SET ASIDE on the basis of reasonable
doubt. His immediate release from the New Bilibid Prisons is ordered unless he is
detained for any other lawful cause. Costs de oficio.
SO ORDERED.
Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ ., concur.

IV. (Republic vs. Court of Appeals and Molina, 26S SCRA 198.)

[G.R. No. 108763. February 13, 1997.]


REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and RORIDEL
OLAVIANO MOLINA, respondents.
The Solicitor General for petitioner.
Juanito A. Orallo for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; ANNULMENT OF MARRIAGE; PSYCHOLOGICAL
INCAPACITY; CONFINED TO THE MOST SERIOUS CASES OF PERSONALITY
DISORDER. — In Leouel Santos vs. Court of Appeals, this Court, speaking thru Mr.
Justice Jose C. Vitug, ruled that "psychological incapacity should refer to no less than
a mental (not physical) incapacity . . . and that (t)here is hardly any doubt that the
intendment of the law has been to confine the meaning of 'psychological incapacity'
to the most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage. This
psychologic condition must exist at the time the marriage is celebrated." Citing Dr.
Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of

37
the Catholic Archdiocese of Manila, Justice Vitug wrote that "the psychological
incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability."
2. ID.; ID.; ID.; ID.; NOT A MERE OUTRIGHT REFUSAL OR NEGLECT IN
PERFORMANCE OF MARITAL OBLIGATIONS OR INCOMPATIBILITY; CASE AT BAR. —
On the other hand, in the present case, there is no clear showing to us that the
psychological defect spoken of is an incapacity. It appears to us to be more of a
"difficulty," if not outright "refusal" or "neglect" in the performance of some marital
obligations. Mere showing of 'irreconcilable differences" and "conflicting
personalities" in no wise constitutes psychological incapacity. It is not enough to
prove that the parties failed to meet their responsibilities and duties as married
persons; it is essential that they must be shown to be incapable of doing so, due to
some psychological (not physical) illness. The evidence adduced by respondent
merely showed that she and her husband could not get along with each other. There
had been no showing of the gravity of the problem; neither its juridical antecedence
nor its incurability. The expert testimony of Dr. Sison showed no incurable
psychiatric disorder but only incompatibility, not psychological incapacity.
3. ID.; ID.; ID.; ID.; GUIDING PRINCIPLES IN INTERPRETATION AND
APPLICATION OF ARTICLE 36. — The following guidelines in the interpretation and
application of Art. 36 of the Family Code are hereby handed down for the guidance of
the bench and the bar: (1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity. (2) The root
cause of the psychological incapacity must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained
in the decision. (3) The incapacity must be proven to be existing at "the time of the
celebration" of the marriage. (4) Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex. (5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of marriage (6) The
essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in
the text of the decision. (7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or
decisive, should be given great respect by our courts. (8) The trial court must order
the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for
the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons
for his agreement or opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the equivalent function
of the defensor vinculi contemplated under Canon 1095.
PADILLA, J., Separate Statement:
CIVIL LAW; FAMILY CODE; ANNULMENT OF MARRIAGE; PSYCHOLOGICAL
INCAPACITY; EXISTENCE OF GROUND DEPEND ON THE FACTS OF THE CASE; TRIAL
JUDGE MUST TAKE PAINS IN EXAMINING FACTUAL MILLIEU AND APPELLATE COURT
MUST AVOID SUBSTITUTING ITS JUDGMENT FOR THAT OF THE TRIAL COURT. — I
concur in the result of the decision penned by Mr. Justice Panganiban but only

38
because of the peculiar facts of the case. As to whether or not psychological
incapacity exists in a given case calling for annulment of a marriage, depends
crucially, more than in any field of the law, on the facts of the case. In the field of
psychological incapacity as a ground for annulment of marriage, it is trite to say that
no case is on "all fours" with another case. The trial judge must take pains in
examining the factual millieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial court.
ROMERO, J., Separate Opinion:
1. CIVIL LAW; FAMILY CODE; ANNULMENT OF MARRIAGE; OPPOSING AND
CONFLICTING PERSONALITIES IS NOT EQUIVALENT TO PSYCHOLOGICAL
INCAPACITY. — The majority opinion, overturning that of the Court of Appeals which
affirmed the Regional Trial Court ruling, upheld petitioner Solicitor General's position
that "opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage of
their responsibilities and duties, but a defect in their psychological nature which
renders them incapable of performing such marital responsibilities and duties."
2. ID.; ID.; ID.; ID.; CASE AT BAR. — In the present case, the alleged
personality traits of Reynaldo, the husband, did not constitute so much
"psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove that the parties
failed to meet their responsibilities and duties as married persons, it is essential that
they must be shown to be incapable of doing so, due to some psychological (not
physical) illness."
3. ID.; ID.; ID.; ID.; INCAPACITY SHOULD NOT BE THE RESULT OF MENTAL
ILLNESS. — I would add that neither should the incapacity be the result of mental
illness. For if it were due to insanity or defects in the mental faculties short of
insanity, there is a resultant defect or vice of consent, thus rendering the marriage
annullable under Art. 45 of the Family Code.
VITUG, J., Concurring Opinion:
1. CIVIL LAW; FAMILY CODE; ANNULMENT OF MARRIAGE; PSYCHOLOGICAL
INCAPACITY; OTHER GROUNDS SHOULD BE READ ALONG WITH IT IN DETERMINING
ITS IMPORT. — In determining the import of "psychological incapacity" under Article
36, one must also read it along with, albeit to be taken as distinct from, the other
grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise,
but for distinct reasons, render the marriage void ab initio, or Article 45 that would
make the marriage merely voidable, or Article 55 that could justify a petition for
legal separation. Care must be observed so that these various circumstances are not
applied so indiscriminately as if the law were indifferent on the matter. Article 36 of
the Family Code cannot be taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage. Thus correlated,
'psychological incapacity' should refer to no less than a mental (not physical)
incapacity that causes a party to be truly incognitive of the basic marital covenants
that concomitantly must be assumed and discharged by the parties to the marriage
which, as so expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to
confine the meaning of 'psychological incapacity' to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. This psychologic condition must exist
at the time the marriage is celebrated. The law does not evidently envision, upon the
other hand, an inability of the spouse to have sexual relations with the other.
2. ID.; ID.; ID.; ID.; TESTS. — In fine, the term psychological incapacity," to be

39
a ground for the nullity of marriage under Article 36 of the Family Code, must be
able to pass the following tests; viz: First, the incapacity must be psychological or
mental not physical, in nature; Second, the psychological incapacity must relate to
the inability, not mere refusal, to understand assume and discharge the basic marital
obligations of living together, observing love, respect and fidelity and rendering
mutual help and support; Third, the psychologic condition must exist at the time the
marriage is contracted although its overt manifestations may occur only thereafter;
and Fourth, the mental disorder must be grave or serious and incurable.
DECISION
PANGANIBAN, J p:
The Family Code of the Philippines provides an entirely new ground (in addition to
those enumerated in the Civil Code) to assail the validity of a marriage, namely,
"psychological incapacity." Since the Code's effectivity, our courts have been
swamped with various petitions to declare marriages void based on this ground.
Although this Court had interpreted the meaning of psychological incapacity in the
recent case of Santos vs. Court of Appeals, still many judges and lawyers find
difficulty in applying said novel provision in specific cases. In the present case and in
the context of the herein assailed Decision of the Court of Appeals, the Solicitor
General has labelled — exaggerated to be sure but nonetheless expressive of his
frustration — Article 36 as the "most liberal divorce procedure in the world." Hence,
this Court in addition to resolving the present case, finds the need to lay down
specific guidelines in the interpretation and application of Article 36 of the Family
Code.
Before us is a petition for review on certiorari under Rule 45 challenging the January
25, 1993 Decision 1 of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in
toto the May 14, 1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet,
which declared the marriage of respondent Roridel Olaviano Molina to Reynaldo
Molina void ab initio, on the ground of "psychological incapacity" under Article 36 of
the Family Code.
The Facts
This case was commenced on August 16, 1990 with the filing by respondent Roridel
O. Molina of a verified petition for declaration of nullity of her marriage to Reynaldo
Molina. Essentially, the petition alleged that Roridel and Reynaldo were married on
April 14, 1985 at the San Agustin Church 4 in Manila; that a son, Andre O. Molina
was born; that after a year of marriage, Reynaldo showed signs of "immaturity and
irresponsibility" as a husband and a father since he preferred to spend more time
with his peers and friends on whom he squandered his money; that he depended on
his parents for aid and assistance, and was never honest with his wife in regard to
their finances, resulting in frequent quarrels between them; that sometime in
February 1986, Reynaldo was relieved of his job in Manila, and since then Roridel
had been the sole breadwinner of the family; that in October 1986 the couple had a
very intense quarrel, as a result of which their relationship was estranged; that in
March 1987, Roridel resigned from her job in Manila and went to live with her
parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child,
and had since then abandoned them; that Reynaldo had thus shown that he was
psychologically incapable of complying with essential marital obligations and was a
highly immature and habitually quarrelsome individual who thought of himself as a
king to be served; and that it would be to the couple's best interest to have their
marriage declared null and void in order to free them from what appeared to be an
incompatible marriage from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could
no longer live together as husband and wife, but contended that their

40
misunderstandings and frequent quarrels were due to (1) Roridel's strange behavior
of insisting on maintaining her group of friends even after their marriage; (2)
Roridel's refusal to perform some of her marital duties such as cooking meals; and
(3) Roridel's failure to run the household and handle their finances.
During the pre-trial on October 17, 1990, the following were stipulated:
"1. That the parties herein were legally married on April 14, 1985 at the Church
of St. Augustine, Manila;
2. That out of their marriage, a child named Albert Andre Olaviano Molina was
born on July 29, 1986;
3. That the parties are separated-in-fact for more than three years;
4. That petitioner is not asking support for her and her child;
5. That the respondent is not asking for damages;
6. That the common child of the parties is in the custody of the petitioner wife."
Evidence for herein respondent wife consisted of her own testimony and that of her
friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a
social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General
Hospital and Medical Center. She also submitted documents marked as Exhibits "A"
to "E-1." Reynaldo did not present any evidence as he appeared only during the pre-
trial conference.
On May 14, 1991, the trial court rendered judgment declaring the marriage void. The
appeal of petitioner was denied by the Court of Appeals which affirmed in toto the
RTC's decision. Hence, the present recourse.
The Issue
In his petition, the Solicitor General insists that "the Court of Appeals made an
erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as
provided under Art. 36 of the Family Code) and made an incorrect application thereof
to the facts of the case," adding that the appealed Decision tended "to establish in
effect the most liberal divorce procedure in the world which is anathema to our
culture."
In denying the Solicitor General's appeal, the respondent Court relied 5 5a heavily on
the trial court's findings "that the marriage between the parties broke up because of
their opposing and conflicting personalities." Then, it added its own opinion that "the
Civil Code Revision Committee (hereinafter referred to as the Committee) intended
to liberalize the application of our civil laws on personal and family rights . . .." It
concluded that:
"As a ground for annulment of marriage, We view psychological incapacity as a broad
range of mental and behavioral conduct on the part of one spouse indicative of how
he or she regards the marital union, his or her personal relationship with the other
spouse, as well as his or her conduct in the long haul for the attainment of the
principal objectives of marriage. If said conduct, observed and considered as a
whole, tends to cause the union to self-destruct because it defeats the very
objectives of marriage, then there is enough reason to leave the spouses to their
individual fates.
In the case at bar, We find that the trial judge committed no indiscretion in analyzing
and deciding the instant case, as it did, hence, We find no cogent reason to disturb
the findings and conclusions thus made."
Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.
The petitioner, on the other hand, argues that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, explaining that such
ground "is not simply the neglect by the parties to the marriage of their
responsibilities and duties, but a defect in their psychological nature which renders
them incapable of performing such marital responsibilities and duties."

41
The Court's Ruling
The petition is meritorious.
In Leouel Santos vs. Court of Appeals, 6 this Court, speaking thru Mr. Justice Jose C.
Vitug, ruled that "psychological incapacity should refer to no less than a mental (not
physical) incapacity . . . and that (t)here is hardly any doubt that the intendment of
the law has been to confine the meaning of 'psychological incapacity' to the most
serious cases of personality disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo
Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must
be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to us that the
psychological defect spoken of is an incapacity. It appears to us to be more of a
"difficulty," if not outright "refusal" or "neglect" in the performance of some marital
obligations. Mere showing of "irreconcilable differences" and "conflicting
personalities" in no wise constitutes psychological incapacity. It is not enough to
prove that the parties failed to meet their responsibilities and duties as married
persons; it is essential that they must be shown to be incapable of doing so, due to
some psychological (not physical) illness.
The evidence adduced by respondent merely showed that she and her husband could
not get along with each other. There had been no showing of the gravity of the
problem; neither its juridical antecedence nor its incurability. The expert testimony
of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not
psychological incapacity. Dr. Sison testified: 8
"COURT
Q It is therefore the recommendation of the psychiatrist based on your findings
that it is better for the Court to annul (sic) the marriage?
A Yes, Your Honor.
Q There is no hope for the marriage?
A There is no hope, the man is also living with another woman.
Q Is it also the stand of the psychiatrist that the parties are psychologically unfit
for each other but they are psychologically fit with other parties?
A Yes, Your Honor.
Q Neither are they psychologically unfit for their professions?
A Yes, Your Honor.
The Court has no more questions."
In the case of Reynaldo, there is no showing that his alleged personality traits were
constitutive of psychological incapacity existing at the time of marriage celebration.
While some effort was made to prove that there was a failure to fulfill pre-nuptial
impressions of "thoughtfulness and gentleness" on Reynaldo's part and of being
"conservative, homely and intelligent" on the part of Roridel, such failure of
expectation is not indicative of antecedent psychological incapacity. If at all, it
merely shows love's temporary blindness to the faults and blemishes of the beloved.
lexlib
During its deliberations, the Court decided to go beyond merely ruling on the facts of
this case vis-a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of
the Family Code and the difficulty experienced by many trial courts in interpreting
and applying it, the Court decided to invite two amici curiae, namely, the Most
Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge) of the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines, and Justice Ricardo C.
Puno, 10 a member of the Family Code Revision Committee. The Court takes this

42
occasion to thank these friends of the Court for their informative and interesting
discussions during the oral argument on December 3, 1996, which they followed up
with written memoranda.
From their submissions and the Court's own deliberations, the following guidelines in
the interpretation and application of Art. 36 of the Family Code are hereby handed
down for the guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation of
the marriage and against its dissolution and nullity. This is rooted in the fact that
both our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the Family, 11 recognizing
it "as the foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both the family and
marriage are to be "protected" by the state.
The Family Code 12 echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision. Article 36 of the Family Code requires that
the incapacity must be psychological — not physical, although its manifestations
and/or symptoms may be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to such an extent that the
person could not have known the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of the provision under
the principle of ejusdem generis, 13 nevertheless such root cause must be identified
as a psychological illness and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration"
of the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such moment,
or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not
be psychologically capacitated to procreate, bear and raise his/her own children as
an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characterological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to
71 of the Family Code as regards the husband and wife as well as Articles 220, 221

43
and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given
great respect by our courts. It is clear that Article 36 was taken by the Family Code
Revision Committee from Canon 1095 of the New Code of Canon Law, which became
effective in 1983 and which provides:
"The following are incapable of contracting marriage: Those who are unable to
assume the essential obligations of marriage due to causes of psychological nature."
14
Since the purpose of including such provision in our Family Code is to harmonize our
civil laws with the religious faith of our people, it stands to reason that to achieve
such harmonization, great persuasive weight should be given to decisions of such
appellate tribunal. Ideally — subject to our law on evidence — what is decreed as
canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the Family
Code provision, contemporaneous religious interpretation is to be given persuasive
effect. Here, the State and the Church — while remaining independent, separate and
apart from each other — shall walk together in synodal cadence towards the same
goal of protecting and cherishing marriage and the family as the inviolable base of
the nation.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or opposition, as the case may
be, to the petition. The Solicitor General, along with the prosecuting attorney, shall
submit to the court such certification within fifteen (15) days from the date the case
is deemed submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon 1095.
In the instant case and applying Leouel Santos, we have already ruled to grant the
petition. Such ruling becomes even more cogent with the use of the foregoing
guidelines.
WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET
ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains
valid.
SO ORDERED.
Narvasa, C .J ., Davide, Jr., Bellosillo, Melo, Puno, Francisco, Hermosisima, Jr. and
Torres, Jr., JJ ., concur.
Regalado, Kapunan and Mendoza, JJ., concur in the result.
Padilla, Romero, Vitug, JJ., see separate opinion.
Separate Opinions
PADILLA, J ., concurring:
I concur in the result of the decision penned by Mr. Justice Panganiban but only
because of the peculiar facts of the case. As to whether or not psychological
incapacity exists in a given case calling for annulment of a marriage, depends
crucially, more than in any field of the law, on the facts of the case. In Leouel Santos
v. Court of Appeals and Julia Rosario-Bedia Santos, G.R. No. 112019, 4 January
1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in a
valid marriage. The facts of the present case, after an in-depth study, do not support
a similar conclusion. Obviously, each case must be judged, not on the basis of a

44
priori assumptions, predilections or generalizations but according to its own facts. In
the field of psychological incapacity as a ground for annulment of marriage, it is trite
to say that no case is on "all fours" with another case. The trial judge must take
pains in examining the factual milieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the trial court.
ROMERO, J ., concurring:
The majority opinion, overturning that of the Court of Appeals which affirmed the
Regional Trial Court ruling, upheld petitioner Solicitor General's position that
"opposing and conflicting personalities" is not equivalent to psychological incapacity,
for the latter "is not simply the neglect by the parties to the marriage of their
responsibilities and duties, but a defect in their psychological nature which renders
them incapable of performing such marital responsibilities and duties."
In the present case, the alleged personality traits of Reynaldo, the husband, did not
constitute so much "psychological incapacity" as a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing so,
due to some psychological (not physical) illness.
I would add that neither should the incapacity be the result of mental illness. For if it
were due to insanity or defects in the mental faculties short of insanity, there is a
resultant defect or vice of consent, thus rendering the marriage annullable under Art.
45 of the Family Code.
That the intent of the members of the U.P. Law Center's Civil Code Revision
Committee was to exclude mental inability to understand the essential nature of
marriage and focus strictly on psychological incapacity is demonstrated in the way
the provision in question underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:
"(7) Those marriages contracted by any party who, at the time of the celebration,
was wanting in the sufficient use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally incapacitated to discharge the
essential marital obligations, even if such lack of incapacity is made manifest after
the celebration.
The twists and turns which the ensuing discussion took finally produced the following
revised provision even before the session was over:
"(7) That contracted by any party who, at the time of the celebration, was
psychologically incapacitated to discharge the essential marital obligations, even if
such lack or incapacity becomes manifest after the celebration."
Noticeably, the immediately preceding formulation above has dropped any reference
to "wanting in the sufficient use of reason or judgment to understand the essential
nature or marriage" and to "mentally incapacitated." It was explained that these
phrases refer to "defects in the mental faculties vitiating consent, which is not the
idea . . . but lack of appreciation of one's marital obligation." There being a defect in
consent, "it is clear that it should be a ground for voidable marriage because there is
the appearance of consent and it is capable of convalidation for the simple reason
that there are lucid intervals and there are cases when the insanity is curable . . .
Psychological incapacity does not refer to mental faculties and has nothing to do with
consent; it refers to obligations attendant to marriage." 1
My own position as a member of the Committee then was that psychological
incapacity is, in a sense, insanity of a lesser degree.
As to the proposal of Justice Caguioa to use the term "psychological or mental
impotence," Archbishop Oscar Cruz opined in the earlier February 9, 1984 session
that this term "is an invention of some churchmen who are moralists but not

45
canonists, that is why it is considered a weak phrase." He said that the Code of
Canon Law would rather express it as "psychological or mental incapacity to
discharge . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.
One of the guidelines enumerated in the majority opinion for the interpretation and
application of Art. 36 is: "Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be absolute or even relative
only in regard to the other spouse, not necessarily absolutely against everyone of the
same sex."
The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the
phrase "and is incurable" but Prof. Esteban B. Bautista commented that this would
give rise to the question of how they will determine curability and Justice Caguioa
agreed that it would be more problematic. Yet the possibility that one may be cured
after the psychological incapacity becomes manifest after the marriage was not ruled
out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa suggested that the
remedy was to allow the afflicted spouse to remarry.
For clarity, the Committee classified the bases for determining void marriages, viz:
1. lack of one or more of the essential requisites of marriage as contract;
2. reasons of public policy;
3. special cases and special situations.
The ground of psychological incapacity was subsumed under "special cases and
special situations," hence its special treatment in Art. 36 in the Family Code as finally
enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or
annulling marriages that even comes close to being psychological in nature.
Where consent is vitiated due to circumstances existing at the time of the marriage,
such marriage which stands valid until annulled is capable of ratification or
convalidation.
On the other hand, for reasons of public policy or lack of essential requisites, some
marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the provisions on Marriage,
the drafters, now open to fresh winds of change in keeping with the more permissive
mores and practices of the time, took a leaf from the relatively liberal provisions of
Canon Law.
Canon 1095 which states, inter alia, that the following persons are incapable of
contracting marriage: "3. (those) who, because of causes of a psychological nature,
are unable to assume the essential obligations of marriage" provided the model for
what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at
the time of the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization." liblex
It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of
marriages with respect to their validity: valid and void. Civil Law, however,
recognizes an intermediate state, the voidable or annullable marriages. When the
Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and
void, i.e., it never really existed in the first place, for a valid sacramental marriage
can never be dissolved. Hence, a properly performed and consummated marriage
between two living Roman Catholics can only be nullified by the formal annulment
process which entails a full tribunal procedure with a Court selection and a formal
hearing.
Such so-called church "annulments" are not recognized by Civil Law as severing the
marriage ties as to capacitate the parties to enter lawfully into another marriage. The

46
grounds for nullifying civil marriage, not being congruent with those laid down by
Canon Law, the former being more strict, quite a number of married couples have
found themselves in limbo — freed from the marriage bonds in the eyes of the
Catholic Church but yet unable to contract a valid civil marriage under state laws.
Heedless of civil law sanctions, some persons contract new marriages or enter into
live-in relationships.
It was precisely to provide a satisfactory solution to such anomalous situations that
the Civil Law Revision Committee decided to engraft the Canon Law concept of
psychological incapacity into the Family Code — and classified the same as a ground
for declaring marriages void ab initio or totally inexistent from the beginning.
A brief historical note on the Old Canon Law (1917). This Old Code, while it did not
provide directly for psychological incapacity, in effect recognized the same indirectly
from a combination of three old canons: "Canon #1081 required persons to be
'capable according to law' in order to give valid consent; Canon #1082 required that
persons 'be at least not ignorant' of the major elements required in marriage; and
Canon #1087 (the force and fear category) required that internal and external
freedom be present in order for consent to be valid. This line of interpretation
produced two distinct but related grounds for annulment, called 'lack of due
discretion' and 'lack of due competence.' Lack of due discretion means that the
person did not have the ability to give valid consent at the time of the wedding and
therefore the union is invalid. Lack of due competence means that the person was
incapable of carrying out the obligations of the promise he or she made during the
wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving
sexual disorders such as homosexuality and nymphomania laid the foundation for a
broader approach to the kind of proof necessary for psychological grounds for
annulment. The Rota had reasoned for the first time in several cases that the
capacity to give valid consent at the time of marriage was probably not present in
persons who had displayed such problems shortly after the marriage. The nature of
this change was nothing short of revolutionary. Once the Rota itself had
demonstrated a cautious willingness to use this kind of hindsight, the way was paved
for what came after 1970. Diocesan Tribunals began to accept proof of serious
psychological problems that manifested themselves shortly after the ceremony as
proof of an inability to give valid consent at the time of the ceremony.
"Furthermore, and equally significant, the professional opinion of a psychological
expert became increasingly important in such cases. Data about the person's entire
life, both before and after the ceremony, were presented to these experts and they
were asked to give professional opinions about a party's mental capacity at the time
of the wedding. These opinions were rarely challenged and tended to be accepted as
decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not amount
to the addition of new grounds for annulment, but rather was an accommodation by
the Church to the advances made in psychology during the past decades. There was
now the expertise to provide the all-important connecting link between a marriage
breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage from that of a
legal contract to that of a covenant. The result of this was that it could no longer be
assumed in annulment cases that a person who could intellectually understand the
concept of marriage could necessarily give valid consent to marry. The ability to both
grasp and assume the real obligations of a mature, lifelong commitment are now
considered a necessary prerequisite to valid matrimonial consent." 2
Rotal decisions continued applying the concept of incipient psychological incapacity,

47
"not only to sexual anomalies but to all kinds of personality disorders that
incapacitate a spouse or both spouses from assuming or carrying out the essential
obligations of marriage. For marriage . . . is not merely cohabitation or the right of
the spouses to each other's body for heterosexual acts, but is, in its totality
community of the whole of life; i.e., the right to a developing lifelong relationship.
Rotal decisions since 1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult personality; as
meaning the capacity of the spouses to give themselves to each other and to accept
the other as a distinct person; that the spouses must be 'other oriented' since the
obligations of marriage are rooted in a self-giving love; and that the spouses must
have the capacity for interpersonal relationship because marriage is more than just a
physical reality but involves a true intertwining of personalities. The fulfillment of the
obligations of marriage depends, according to Church decisions, on the strength of
this interpersonal relationship. A serious incapacity for interpersonal sharing and
support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered in
isolation but in reference to the fundamental relationship to the other spouse. 3
Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature
marital relationship:
"The courts consider the following elements crucial to the marital commitment: (1) a
permanent and faithful commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the ordinary stresses and strains of
marriage, etc."
Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:
"At stake is a type of constitutional impairment precluding conjugal communion even
with the best intentions of the parties. Among the psychic factors possibly giving rise
to his or her inability to fulfill marital obligations are the following: (1) antisocial
personality with its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the
inadequate personality where personal responses consistently fall short of reasonable
expectations.
xxx xxx xxx
The psychological grounds are the best approach for anyone who doubts whether he
or she has a case for an annulment on any other terms. A situation that does not fit
into any of the more traditional categories often fits very easily into the psychological
category.
As new as the psychological grounds are, experts are already detecting a shift in
their use. Whereas originally the emphasis was on the parties' inability to exercise
proper judgment at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' incapacity to assume or carry out their
responsibilities and obligations as promised (lack of due competence). An advantage
to using the ground of lack of due competence is that the at the time the marriage
was entered into civil divorce and breakup of the family almost always is proof of
someone's failure to carry out marital responsibilities as promised at the time the
marriage was entered into." 4
In the instant case, "opposing and conflicting personalities" of the spouses were not
considered equivalent to psychological incapacity. As well as in Santos v. Court of
Appeals cited in the ponencia, the Court held that the failure of the wife to return
home from the U.S. or to communicate with her husband for more than five years is
not proof of her psychological incapacity as to render the marriage a nullity. 5

48
Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting.
However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld
both the Regional Trial Court and the Court of Appeals in declaring the presence of
psychological incapacity on the part of the husband. Said petitioner husband, after
ten (10) months' sleeping with his wife never had coitus with her, a fact he did not
deny but he alleged that it was due to the physical disorder of his wife which,
however, he failed to prove. Goaded by the indifference and stubborn refusal of her
husband to fulfill a basic marital obligation described as "to procreate children based
on the universal principle that procreation of children through sexual cooperation is
the basic end of marriage," the wife brought the action in the lower court to declare
the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan
Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1) on psychological
incapacity, concluded:
"If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity.
Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity."
We declared:
"This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent appellate
court."
I concur with the majority opinion that the herein marriage remains valid and
subsisting absent psychological incapacity (under Art. 36 of the Family Code) on the
part of either or both spouses.
VITUG, J ., concurring:
I fully concur with my esteemed colleague Mr. Justice Artemio V. Panganiban in his
ponencia, and I find to be most helpful the guidelines that he prepared for the bench
and the bar in the proper appreciation of Article 36 of Executive Order No. 209 ("The
Family Code of the Philippines"). The term "psychological incapacity" was neither
defined nor exemplified by the Family Code. Thus —
"Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization."
The Revision Committee, constituted under the auspices of the U.P. Law Center,
which drafted the Code explained:
"(T)he Committee would like the judge to interpret the provision on a case-to-case
basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the
civil courts, may be given persuasive effect since the provision was taken from
Canon Law " 1
Article 36 of the Family Code was concededly taken from Canon 1095 of the New
Code of Canon Law —
"Canon 1095. (The following persons) are incapable of contracting marriage; (those)

"1. who lack sufficient use of reason;
"2. who suffer from a grave defect of discretion of judgment concerning essential
matrimonial rights and duties, to be given and accepted mutually;

49
"3. who for causes of psychological nature are unable to assume the essential
obligations of marriage" —
that should give that much value to Canon Law jurisprudence as an aid to the
interpretation and construction of the statutory enactment. 2
The principles in the proper application of the law teach us that the several
provisions of a Code must be read like a congruent whole. Thus, in determining the
import of "psychological incapacity" under Article 36, one must also read it along
with, albeit to be taken as distinct from, the other grounds enumerated in the Code,
like Articles 35, 37, 38 and 41 that would likewise, but for distinct reasons, render
the marriage void ab initio, or Article 45 that would make the marriage merely
voidable, or Article 55 that could justify a petition for legal separation. Care must be
observed so that these various circumstances are not applied so indiscriminately as if
the law were indifferent on the matter.
I would wish to reiterate the Court's statement in Santos vs. Court of Appeals, 3 viz:
"(T)he use of the phrase psychological incapacity' under Article 36 of the Code has
not been meant to comprehend all such possible cases of psychoses as, likewise
mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity,
and like circumstances . . . Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with, existing precepts in
our law on marriage. Thus correlated, psychological incapacity' should refer to no
less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the
Family Code, include their mutual obligations to live together, observe love, respect
and fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of 'psychological incapacity'
to the most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage. This
psychologic condition must exist at the time the marriage is celebrated. The law does
not evidently envision, upon the other hand, an inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the Family
Code which considers children conceived prior to the judicial declaration of nullity of
the void marriage to be legitimate.'
"The other forms of psychoses, if existing at the inception of marriage, like the state
of a party being of unsound mind or concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism, merely renders the marriage contract
voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree and severity of
the disorder, indicia of psychological incapacity." 4
In fine, the term "psychological incapacity," to be a ground for the nullity of marriage
under Article 36 of the Family Code, must be able to pass the following tests; viz.:
First, the incapacity must be psychological or mental, not physical, in nature;
Second, the psychological incapacity must relate to the inability, not mere refusal, to
understand, assume and discharge the basic marital obligations of living together,
observing love, respect and fidelity and rendering mutual help and support;
Third, the psychologic condition must exist at the time the marriage is contracted
although its overt manifestations may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and incurable.
It may well be that the Family Code Revision Committee has envisioned Article 36,

50
as not a few observers would suspect, as another form of absolute divorce or, as still
others would also put it, to be an alternative to divorce; however, the fact still
remains that the language of the law has failed to carry out, even if true, any such
intendment. It might have indeed turned out for the better; if it were otherwise,
there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal
command on how the State should regard marriage and the family, thus —
Section 2, Article XV:
"Sec. 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State."
Section 12, Article II:
"Sec. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution . . ."
Section 1, Article XV:
"Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development." (The 1987 Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much
for the specific issue there resolved but for the tone it has set. The Court there has
held that constitutional provisions are to be considered mandatory unless by
necessary implication, a different intention is manifest such that to have them
enforced strictly would cause more harm than by disregarding them. It is quite clear
to me that the constitutional mandate on marriage and the family has not been
meant to be simply directory in character, nor for mere expediency or convenience,
but one that demands a meaningful, not half-hearted, respect.

V. Constitution, Art. III, Sec. 12

Section 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.
2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
3. Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
4. The law shall provide for penal and civil sanctions for violations of this Section as well as
compensation to the rehabilitation of victims of torture or similar practices, and their
families.

VI. R.A. 7438 (1992), Sec, 2 – extrajudicial confession


Republic Act No. 7438 April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER


CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING
AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF

51
Be it enacted by the Senate and House of Representatives of the Philippines in Congress
assembled::

Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every
human being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties


of Public Officers. –

(a) Any person arrested detained or under custodial investigation shall at all times be assisted by
counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to remain silent and to have competent
and independent counsel, preferably of his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial investigation. If such person
cannot afford the services of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.lawphi1Ÿ

(c) The custodial investigation report shall be reduced to writing by the investigating officer,
provided that before such report is signed, or thumbmarked if the person arrested or detained
does not know how to read and write, it shall be read and adequately explained to him by his
counsel or by the assisting counsel provided by the investigating officer in the language or dialect
known to such arrested or detained person, otherwise, such investigation report shall be null and
void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family or by his counsel, or by any
national non-governmental organization duly accredited by the Commission on Human Rights of
by any international non-governmental organization duly accredited by the Office of the President.
The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or
ward.

As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to
a person who is investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected

52
by the case, those charged with conducting preliminary investigation or those charged with the
prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to the following fees;

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with
light felonies;lawphi1©alf

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with
less grave or grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with
a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial
investigation is conducted, provided that if the municipality of city cannot pay such fee, the
province comprising such municipality or city shall pay the fee: Provided, That the Municipal or
City Treasurer must certify that no funds are available to pay the fees of assisting counsel before
the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be conducted and the suspected
person can only be detained by the investigating officer in accordance with the provisions of
Article 125 of the Revised Penal Code.

Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating
officer, who fails to inform any person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent counsel preferably of his own
choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual
absolute disqualification shall also be imposed upon the investigating officer who has been
previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, or anyone acting upon
orders of such investigating officer or in his place, who fails to provide a competent and
independent counsel to a person arrested, detained or under custodial investigation for the
commission of an offense if the latter cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate
family of a person arrested, detained or under custodial investigation, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate family or by his
counsel, from visiting and conferring privately with him, or from examining and treating him, or
from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall
suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and
a fine of four thousand pesos (P4,000.00).lawphi1©

The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable measures as may be
necessary to secure his safety and prevent his escape.

Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed.
Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or modified accordingly.

53
Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its publication in the
Official Gazette or in any daily newspapers of general circulation in the Philippines.

VII. (People v. Mahinay, 302 SCRA 455)


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY Y AMPARADO,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

SYNOPSIS
Appellant was charged with rape with homicide for the sexual assault and death of
Maria Victoria Chan, 12 years old. Evidence disclosed that Maria, on that fateful
afternoon, went to the second floor of the house where appellant was staying.
Appellant pulled her hand and her head hit the table causing her to become
unconscious. At this stage, appellant, who was then drunk, had sexual intercourse
with her. He then dumped the still unconscious victim inside the septic tank and
thereafter took flight. The body of the victim was retrieved the following day wearing
only a blouse without underwear. Recovered in the unfinished house where accused
slept on the night of the incident was the victim's pair of shorts, brown belt and
yellow hair ribbon. Weight was given to appellant's extrajudicial confession
containing details consistent with the post mortem findings on the victim that she
was raped. The trial court, notwithstanding the absence of direct evidence relative to
the commission of the crime, rendered judgment of conviction. It based its judgment
on circumstantial evidence. DHETIS
An accused despite absence of direct proof is not necessarily absolved from liability
because under the Rules on evidence and pursuant to settled jurisprudence,
conviction may be had on circumstantial evidence.
For circumstantial evidence to support the 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 accused is innocent and
with every other rational hypothesis except that of guilt.
Facts and circumstances consistent with guilt and inconsistent with innocence,
constitute evidence which, in weight and probative force, may surpass even direct
evidence in its effect upon the court.
Finding of facts and assessment of credibility of witnesses is a matter best left to the
trial court. Its findings, conclusions and evaluation of the testimony of witnesses are
received on appeal with the highest respect, the same being supported by
substantial evidence on record. ScTCIE
Under Article 335 of the Revised Penal Code, as amended by RA 7659, when by
reason or on the occasion of the rape a homicide is committed, the penalty shall be
death. Death being an indivisible penalty, the court has no option but to apply the
same regardless of any mitigating or aggravating circumstance that may have
attended the commission of the crime.
In qualified rape under which the death penalty is authorized by present amended
law, the civil indemnity for the victim shall be not less than P75,000.00. TAHcCI

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; WHEN
SUFFICIENT TO CONVICT. — Conviction may be had on circumstantial evidence
provided that the following requisites concur: 1. there is more than one
circumstance; 2. the facts from which the inferences are derived are proven; and 3.
the combination of all the circumstances is such as to produce a conviction beyond

54
reasonable doubt. Simply put, 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. Facts and circumstances consistent with guilt and inconsistent with
innocence, constitute evidence which, in weight and probative force, may surpass
even direct evidence in its effect upon the court.
2. ID.; ID.; GUIDING PRINCIPLES IN THE REVIEW OF RAPE CASES. — The three
guiding principles in the review of rape cases are, to wit: 1). An accusation for rape
can be made with facility; it is difficult to prove but more difficult for the person
accused, though innocent, to disprove; 2). In view of the intrinsic nature of the crime
of rape, where only two persons are usually involved, the testimony of the
complainant is scrutinized with extreme caution; and 3). The evidence of the
prosecution stands or falls on its own merits and cannot be allowed to draw strength
from the weakness of the defense.
3. CRIMINAL LAW; RAPE UNDER R.A. 8353; RE-CLASSIFIED AS A CRIME
AGAINST PERSONS. — At the time of the commission of this heinous act, rape was
still considered a crime against chastity, although under the Anti-Rape Law of 1997
(R.A. No. 8353), rape has since been re-classified as a crime against persons under
Articles 266-A and 266-B, and thus, may be prosecuted even without a complaint
filed by the offended party.
4. ID.; RAPE; ELEMENTS. — The gravamen of the offense of rape, prior to R.A.
8353, is sexual congress with a woman by force and without consent. (Under the
new law, rape may be committed even by a woman and the victim may even be a
man.) If the woman is under 12 years of age, proof of force and consent becomes
immaterial not only because force is not an element of statutory rape, but the
absence of a free consent is presumed when the woman is below such age.
Conviction will therefore lie, provided sexual intercourse is proven. But if the woman
is 12 years of age or over at the time she was violated, as in this case, not only the
first element of sexual intercourse must be proven but also the other element that
the perpetrator's evil acts with the offended party was done through force, violence,
intimidation or threat needs to be established. Both elements are present in this
case. aECTcA
5. ID.; ID.; MERE TOUCHING OF THE MALE ORGAN ON LABIA OF PUDENDUM,
SUFFICIENT TO CONSUMMATE RAPE. — In proving sexual intercourse, it is not full or
deep penetration of the victim's vagina; rather the slightest penetration of the male
organ into the female sex organ is enough to consummate the sexual intercourse.
The mere touching by the male's organ or instrument of sex of the labia of the
pudendum of the woman's private parts is sufficient to consummate rape.
6. ID.; ID.; FORCE EMPLOYED ON VICTIM, PROVEN IN CASE AT BAR. — From
the wounds, contusions and abrasions suffered by the victim, force was indeed
employed upon her to satisfy carnal lust. Moreover, from appellant's own account, he
pushed the victim causing the latter to hit her head on the table and fell
unconscious. It was at that instance that he ravished her and satisfied his salacious
and prurient desires. Considering that the victim, at the time of her penile invasion,
was unconscious, it could safely be concluded that she had not given free and
voluntary consent to her defilement, whether before or during the sexual act.
7. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS AND
ASSESSMENT OF CREDIBILITY OF WITNESSES BY THE TRIAL COURT RECEIVED
WITH HIGHEST RESPECT ON APPEAL. — Settled is the rule that the findings of facts
and assessment of credibility of witnesses is a matter best left to the trial court
because of its unique position of having observed that elusive and incommunicable

55
evidence of the witnesses' deportment on the stand while testifying, which
opportunity is denied to the appellate courts. In this case, the trial court's findings,
conclusions and evaluation of the testimony of witnesses is received on appeal with
the highest respect, the same being supported by substantial evidence on record.
There was no showing that the court a quo had overlooked or disregarded relevant
facts and circumstances which when considered would have affected the outcome of
this case or justify a departure from the assessments and findings of the court
below. The absence of any improper or ill-motive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no such
motive exists. Neither was any wrong motive attributed to the police officers who
testified against appellant.
8. CRIMINAL LAW; RAPE WITH HOMICIDE; PENALTY. — Death being a single
indivisible penalty and the only penalty prescribed by law for the crime of "rape with
homicide," the court has no option but to apply the same "regardless of any
mitigating or aggravating circumstance that may have attended the commission of
the crime" in accordance with Article 63 of the RPC, as amended. This case of rape
with homicide carries with it penalty of death which is mandatorily imposed by law
within the import of Article 47 of the RPC, as amended.
9. CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE. — Pursuant to current case
law, a victim of simple rape is entitled to a civil indemnity of fifty thousand pesos
(P50,000.00) but if the crime of rape is committed or effectively qualified by any of
the circumstances under which the death penalty is authorized by present amended
law, the civil indemnity for the victim shall be not less than seventy-five thousand
pesos (P75,000.00). In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code in such amount as the court
deems just, without the necessity for pleading or proof of the basis thereof. Civil
indemnity is different from the award of moral and exemplary damages.
10. ID.; ID.; MORAL DAMAGES; AWARDED TO RAPE VICTIM WITHOUT NEED FOR
PLEADING OR PROOF OF BASIS. — The requirement of proof of mental and physical
suffering provided in Article 2217 of the Civil Code is dispensed with because it is
"recognized that the victim's injury is inherently concomitant with and necessarily
resulting from the odious crime of rape to warrant per se the award of moral
damages." Thus, it was held that a conviction for rape carries with it the award of
moral damages to the victim without need for pleading or proof of the basis thereof.
11. ID.; ID.; EXEMPLARY DAMAGES; AWARDED IF COMMISSION OF CRIME WAS
ATTENDED BY ONE OR MORE AGGRAVATING CIRCUMSTANCES. — Exemplary
damages can also be awarded if the commission of the crime was attended by one or
more aggravating circumstances pursuant to Article 2230 of the Civil Code after
proof that the offended party is entitled to moral, temperate and compensatory
damages. Under the circumstances of this case, appellant is liable to the victim's
heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral
damages. ESTCHa
DECISION
PER CURIAM p:
A violation of the dignity, purity and privacy of a child who is still innocent and
unexposed to the ways of worldly pleasures is a harrowing experience that destroys
not only her future but of the youth population as well, who in the teachings of our
national hero, are considered the hope of the fatherland. Once again, the Court is
confronted by another tragic desecration of human dignity, committed no less upon a
child, who at the salad age of a few days past 12 years, has yet to knock on the
portals of womanhood, and met her untimely death as a result of the "intrinsically
evil act" of non-consensual sex called rape. Burdened with the supreme penalty of

56
death, rape is an ignominious crime for which necessity is neither an excuse nor
does there exist any other rational justification other than lust. But those who lust
ought not to last. cdphil
The Court quotes with approval from the People's Brief, the facts narrating the
horrible experience and the tragic demise of a young and innocent child in the bloody
hands of appellant, as such facts are ably supported by evidence on record: 1 *
"Appellant Larry Mahinay started working as houseboy with Maria Isip on November
20, 1993. His task was to take care of Isip's house which was under construction
adjacent to her old residence situated inside a compound at No. 4165 Dian Street,
Gen. T. de Leon, Valenzuela, Metro Manila. But he stayed and slept in an apartment
also owned by Isip, located 10 meters away from the unfinished house (TSN,
September 6, 1995, pp. 5-10).
"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian Street. She
used to pass by Isip's house on her way to school and play inside the compound
yard, catching maya birds together with other children. While they were playing,
appellant was always around washing his clothes. Inside the compound yard was a
septic tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22).
"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a drinking
spree. Around 10 o'clock in the morning, appellant, who was already drunk, left
Gregorio Rivera and asked permission from Isip to go out with his friends (TSN,
September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store fronting the
compound, saw Ma. Victoria on that same day three to four times catching birds
inside Isip's unfinished house around 4 o'clock in the afternoon. The unfinished
house was about 8 meters away from Rivera's store (TSN, September 18, 1995, pp.
9-11).
"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-
law's house between 6 to 7 o'clock p.m. to call his office regarding changes on the
trip of President Fidel V. Ramos. The house of his in-laws was near the house of Isip.
On his way to his in-law's house, Sgt. Suni met appellant along Dian Street. That
same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria standing in front of
the gate of the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).
"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's store to
buy lugaw. Norgina Rivera informed appellant that there was none left of it. She
notice that appellant appeared to be uneasy and in deep thought. His hair was
disarrayed; he was drunk and was walking in a dazed manner. She asked why he
looked so worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).
"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She
last saw her daughter wearing a pair of white shorts, brown belt, a yellow hair
ribbon, printed blue blouse, dirty white panty, white lady sando and blue rubber
slippers (TSN, August 23, 1995, pp. 22, 33).
"Isip testified that appellant failed to show up for supper that night. On the following
day, June 26, 1995, at 2 o'clock in the morning, appellant boarded a passenger
jeepney driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of
the bridge of the North Expressway and had thereafter disappeared (TSN, September
20, 1995, pp. 4-9; September 27, 1995; pp. 14-17).
"That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria
inside the septic tank. Boy immediately reported what he saw to the victim's parents,
Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).
"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved
from the septic tank. She was wearing a printed blouse without underwear. Her face

57
bore bruises. Results of the autopsy revealed the following findings:
Cyanosis, lips and nailbeds,
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, lateral
aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0
x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area,
left, posterior aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular
area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect,
middle third, 11.00 x 4.0 cm elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm.
forearms, left, posterior aspect, lower rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8
x 0.9 cm. thighs; right antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right
anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm.
knee, right, lateral aspect, 1.5 x 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot,
left, dorsal aspect 2.2 x 1.0 cm.
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural
petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH — Asphyxia by Manual Strangulation; Traumatic Head Injury,
Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o'clock
position corresponding to the face of a watch edges congested with blood clots.
(TSN, August 18, 1995; p. 4; Record, p. 126)
"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were
informed by Isip that her houseboy, appellant Larry Mahinay, was missing. According
to her, it was unlikely for appellant to just disappear from the apartment since
whenever he would go out, he would normally return on the same day or early
morning of the following day (TSN, September 6, 1995, pp. 6-11-27).
"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant
was working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded
to said place. The owner of the factory confirmed to them that appellant used to
work at the factory but she did not know his present whereabouts. Appellant's
townmate, on the other hand, informed them that appellant could possibly be found
on 8th Street, Grace Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).
"The policemen returned to the scene of the crime. At the second floor of the house
under construction, they retrieved from one of the rooms a pair of dirty white short
pants, a brown belt and a yellow hair ribbon which was identified by Elvira Chan to
belong to her daughter, Ma. Victoria. They also found inside another room a pair of
blue slippers which Isip identified as that of appellant. Also found in the yard, three
armslength away from the septic tank were an underwear, a leather wallet, a pair of
dirty long pants and a pliers positively identified by Isip as appellant's belongings.
These items were brought to the police station (TSN, August 14, 1995, pp. 10-13;
August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
"A police report was subsequently prepared including a referral slip addressed to the
office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the
victim's underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
"After a series of follow-up operations, appellant was finally arrested in Barangay
Obario Matala, Ibaan, Batangas. He was brought to the Valenzuela Police Station. On

58
July 7, 1995, with the assistance of Atty. Restituto Viernes, appellant executed an
extra-judicial confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's mother and aunt, he
confided to them that he was not alone in raping and killing the victim. He pointed to
Zaldy and Boyet as his co-conspirators (TSN, August 14, 1995, pp. 13-21)."
Thus, on July 10, 1995, appellant was charged with rape with homicide in an
Information which reads: 2
"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within
the jurisdiction of this Honorable Court the above-named accused, by means of force
and intimidation employed upon the person of MARIA VICTORIA CHAN y CABALLERO,
age 12 years old, did then and there wilfully, unlawfully and feloniously lie with and
have sexual intercourse with said MARIA VICTORIA CHAN Y CABALLERO against her
will and without her consent; that on the occasion of said sexual assault, the above-
named accused, choke and strangle said MARIA VICTORIA CHAN Y CABALLERO as a
result of which, said victim died.
"Contrary to law." 3
to which he pleaded not guilty. After trial, the lower court rendered a decision
convicting appellant of the crime charged, sentenced him to suffer the penalty of
death and to pay a total of P73,000.00 to the victim's heirs. The dispositive portion
of the trial court's decision states:
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable
doubt of the crime charged, he is hereby sentenced to death by electricution (sic).
He is likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the
amount of P50,000.00 and to pay the further sum of P23,000.00 for the funeral,
burial and wake of the victim.
"Let the complete records of the case be immediately forwarded to the Honorable
Supreme Court for the automatic review in accordance to Article 47 of the Revised
Penal Code as amended by Section 22 of Republic Act No. 7659.
"SO ORDERED." 4
Upon automatic review by the Court en banc pursuant to Article 47 of the Revised
Penal Code (RPC), as amended, 5 appellant insists that the circumstantial evidence
presented by the prosecution against him is insufficient to prove his guilt beyond
reasonable doubt. In his testimony summarized by the trial court, appellant offered
his version of what transpired as follows:
"(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking
spree. Gregorio Rivera is the brother of Maria Isip, appellant's employer. After
consuming three cases of red horse beer, he was summoned by Isip to clean the
jeepney. He finished cleaning the jeepney at 12 o'clock noon. Then he had lunch and
took a bath. Later, he asked permission from Isip to go out with his friends to see a
movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-
5).
"At 2 o'clock in the afternoon, appellant, instead of going out with his friend, opted
to rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one
case of red horse beer. Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at
Gregorio Rivera's house. They went to Zaldy's house and bought a bottle of gin. They
finished drinking gin around 8 o'clock p.m. After consuming the bottle of gin, they
went out and bought another bottle of gin from a nearby store. It was already 9
o'clock in the evening. While they were at the store, appellant and Zaldy met Boyet.
After giving the bottle of gin to Zaldy and Boyet, appellant left (TSN, October 16,
1995, pp. 6-7).
"On his way home, appellant passed by Norgina Rivera's store to buy lugaw. Norgina

59
Rivera informed him that there was none left of it. He left the store and proceeded to
Isip's apartment. But because it was already closed, he decided to sleep at the
second floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and Boyet
arrived carrying a cadaver. The two placed the body inside the room where appellant
was sleeping. As appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet
directed him to rape the dead body of the child or they would kill him. He, however,
refused to follow. Then, he was asked by Zaldy and Boyet to assist them in bringing
the dead body downstairs. He obliged and helped dump the body into the septic
tank. Thereupon, Zaldy and Boyet warned him that should they ever see him again,
they would kill him. At 4 o'clock the following morning, he left the compound and
proceeded first to Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).
"Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas.
The police officers allegedly brought him to a big house somewhere in Manila. There,
appellant heard the police officer's plan to salvage him if he would not admit that he
was the one who raped and killed the victim. Scared, he executed an extra-judicial
confession. He claimed that he was assisted by Atty. Restituto Viernes only when he
was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11)."
6
This being a death penalty case, the Court exercises the greatest circumspection in
the review thereof since "there can be no stake higher and no penalty more severe .
. . than the termination of a human life." 7 For life, once taken is like virginity, which
once defiled can never be restored. In order therefore, that appellant's guilty mind
be satisfied, the Court states the reasons why, as the records are not shy, for him to
verify.
The proven circumstances of this case when juxtaposed with appellant's proffered
excuse are sufficient to sustain his conviction beyond reasonable doubt,
notwithstanding the absence of any direct evidence relative to the commission of the
crime for which he was prosecuted. Absence of direct proof does not necessarily
absolve him from any liability because under the Rules on evidence 8 and pursuant
to settled jurisprudence, 9 conviction may be had on circumstantial evidence
provided that the following requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are proven; and
3. the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.
Simply put, 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. 10 Facts
and circumstances consistent with guilt and inconsistent with innocence, constitute
evidence which, in weight and probative force, may surpass even direct evidence in
its effect upon the court. 11
In the case at bench, the trial court gave credence to several circumstantial
evidence, which upon thorough review of the Court is more than enough to prove
appellant's guilt beyond the shadow of reasonable doubt. These circumstantial
evidence are as follows:
"FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of
the unfinished big house where the crime happened and the septic tank where the
body of Maria Victoria Chan was found in the morning of June 26, 1995 is located,
categorically testified that at about 9:00 in the evening on June 25, 1995, accused
Larry Mahinay was in her store located in front portion of the compound of her sister-
in-law Maria Isip where the unfinished big house is situated buying rice noodle

60
(lugaw). That she noticed the accused's hair was disarranged, drunk and walking in
sigsaging manner. That the accused appeared uneasy and seems to be thinking
deeply. That the accused did not reply to her queries why he looked worried but
went inside the compound. prcd
"SECOND — Prosecution witness Sgt. Roberto G. Suni, categorically testified that on
June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-law's
house, he met accused Larry Mahinay walking on the road leading to his in-law's
residence which is about 50 to 75 meters away to the unfinished big house of Maria
Isip. That he also saw victim Maria Victoria Chan standing at the gate of the
unfinished big house of Maria Isip between 8:00 and 9:00 in the same evening.
"THIRD — Prosecution witness Maria Isip, owner of the unfinished big house where
victim's body was found inside the septic tank, testified that accused Larry Mahinay
is her houseboy since November 20, 1993. That in the morning of June 25, 1995, a
Sunday, Larry Mahinay asked permission from her to leave. That after finishing some
work she asked him to do accused Larry Mahinay left. That it is customary on the
part of Larry Mahinay to return in the afternoon of the same day or sometimes in the
next morning. That accused Larry Mahinay did not return until he was arrested in
Batangas on July 7, 1995.
"FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney driver
plying the route Karuhatan-Ugong and vice versa which include Diam St., Gen. T. de
Leon, Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the
passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North Expressway.
"FIFTH — Personal belongings of the victim was found in the unfinished big house of
Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a
clear indication that the victim was raped and killed in the said premises.
"There is no showing that the testimonies of the prosecution witnesses (sic)
fabricated or there was any reason for them to testify falsely against the accused.
The absence of any evidence as to the existence of improper motive sustain the
conclusion that no such improper motive exists and that the testimonies of the
witnesses, therefore, should be given full faith and credit. (People vs. Retubado,
58585 January 20, 1988, 162 SCRA 276, 284; People vs. Ali, L-18512 October 30,
1969, 29 SCRA 756).
"SIXTH — Accused Larry Mahinay during the custodial investigation and after having
been informed of his constitutional rights with the assistance of Atty. Restituto
Viernes of the Public Attorney's Office voluntarily gave his statement admitting the
commission of the crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely and voluntarily
given. That accused did not complain to the proper authorities of any maltreatment
on his person (People vs. delos Santos, L-3398 May 29, 1984; 150 SCRA 311). He
did not even informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was promised of reward or
leniency. That his confession abound with details known only to him. The Court
noted that a lawyer from the Public Attorneys Office Atty. Restituto Viernes and as
testified by said Atty. Viernes he informed and explained to the accused his
constitutional rights and was present all throughout the giving of the testimony. That
he signed the statement given by the accused. Lawyer from the Public Attorneys
Office is expected to be watchful and vigilant to notice any irregularity in the manner
of the investigation and the physical conditions of the accused. The post mortem
findings show that the cause of death Asphyxia by manual strangulation; Traumatic
Head injury Contributory substantiate. Consistent with the testimony of the accused
that he pushed the victim and the latter's head hit the table and the victim lost

61
consciousness.
"Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos
tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na
siya."
"There is no clear proof of maltreatment and/or tortured in giving the statement.
There were no medical certificate submitted by the accused to sustain his claim that
he was mauled by the police officers.
There being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to concoct the
facts narrated in said affidavit; the confession of the accused is held to be true,
correct and freely or voluntarily given. (People v. Tuazon, 6 SCRA 249; People v.
Tiongson, 6 SCRA 431, People v. Baluran, 52 SCRA 71, People v. Pingol, 35 SCRA
73.)
"SEVENTH — Accused Larry Mahinay testified in open Court that he was not able to
enter the apartment where he is sleeping because it was already closed and he
proceeded to the second floor of the unfinished house and slept. He said while
sleeping Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it
inside his room. That at the point of a knife, the two ordered him to have sex with
the dead body but he refused. That the two asked him to assist them in dumping the
dead body of the victim in the septic tank downstairs. (Tsn pp. 8-9, October 16,
1995). This is unbelievable and unnatural. Accused Larry Mahinay is staying in the
apartment and not in the unfinished house. That he slept in the said unfinished
house only that night of June 25, 1995 because the apartment where he was staying
was already closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry
Mahinay) was in the second floor of the unfinished house.
"Furthermore, if the child is already dead when brought by Zaldy and Boyet in the
room at the second floor of the unfinished house where accused Larry Mahinay was
sleeping, why will Boyet and Zaldy still brought the cadaver upstairs only to be
disposed/dump later in the septic tank located in the ground floor. Boyet and Zaldy
can easily disposed and dumped the body in the septic tank by themselves.
"It is likewise strange that the dead body of the child was taken to the room where
accused Larry Mahinay was sleeping only to force the latter to have sex with the
dead body of the child.
"We have no test to the truth of human testimony except it's conformity to aver
knowledge observation and experience. Whatever is repugnant to these belongs to
the miraculous. (People vs. Santos, L-385 Nov. 16, 1979)"
"EIGHT — If the accused did not commit the crime and was only forced to
disposed/dumped the body of the victim in the septic tank, he could have apprise
Col. Maganto, a high ranking police officer or the lady reporter who interviewed him.
His failure and omission to reveal the same is unnatural. An innocent person will at
once naturally and emphatically repel an accusation of crime as a matter of
preservation and self-defense and as a precaution against prejudicing himself. A
person's silence therefore, particularly when it is persistent will justify an inference
that he is not innocent. (People vs. Pilones, L-32754-5 July 21, 1978).
"NINTH — The circumstance of flight of the accused strongly indicate his
consciousness of guilt. He left the crime scene on the early morning after the
incident and did not return until he was arrested in Batangas on July 7, 1995." 12
Guided by the three principles in the review of rape cases, to wit: 13
1). An accusation for rape can be made with facility; it is difficult to prove but
more difficult for the person accused, though innocent, to disprove;
2). In view of the intrinsic nature of the crime of rape, where only two persons

62
are usually involved, the testimony of the complainant is scrutinized with extreme
caution; and
3). The evidence of the prosecution stands or falls on its own merits and cannot
be allowed to draw strength from the weakness of the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape with
homicide defined and penalized under Section 335 of the Revised Penal Code, as
amended by Section 11, R.A. 7659, which provides:
"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 use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or
on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be 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.
2.) When the victim is under the custody of the police or military authorities.
3.) When the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.
4.) When the victim is a religious or a child below seven (7) years old.
5.) When the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6.) When committed by any member of the Armed Forces of the Philippines or
Philippine National Police or any law enforcement agency.
7.) When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation. 14
At the time of the commission of this heinous act, rape was still considered a crime
against chastity, 15 although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape
has since been re-classified as a crime against persons under Articles 266-A and
266-B, and thus, may be prosecuted even without a complaint filed by the offended
party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a
woman by force and without consent. 16 (Under the new law, rape may be
committed even by a woman and the victim may even be a man.) 17 If the woman
is under 12 years of age, proof of force and consent becomes immaterial 18 not only
because force is not an element of statutory rape, 19 but the absence of a free
consent is presumed when the woman is below such age. Conviction will therefore
lie, provided sexual intercourse is proven. But if the woman is 12 years of age or
over at the time she was violated, as in this case, not only the first element of sexual
intercourse must be proven but also the other element that the perpetrator's evil
acts with the offended party was done through force, violence, intimidation or threat
needs to be established. Both elements are present in this case.

63
Based on the evidence on record, sexual intercourse with the victim was adequately
proven. This is shown from the testimony of the medical doctor who conducted post
mortem examination on the child's body:
Q: And after that what other parts of the victim did you examine?
A: Then I examined the genitalia of the victim.
Q: And what did you find out after you examined the genitalia of the victim?
A: The hymen was tall-thick with complete laceration at 4:00 o'clock and 8:00
o'clock position and that the edges were congested.
Q: Now, what might have caused the laceration?
A: Under normal circumstances this might have (sic) caused by a penetration of
an organ.
Q: So, the laceration was caused by the penetration of a male organ?
A: Adult male organ, sir.
Q: You are very sure of that, Mr. Witness?
A: I am very sure of that. 20
Besides, as may be gleaned from his extrajudicial confession, appellant himself
admitted that he had sexual congress with the unconscious child.
"15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na
ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto
hinawakan ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa
mesa. Ayon na, nakakatulog na siya tapos ni rape ko na siya.
"16. T: Ano ang suot nung batang babae na sinasabi mo?
S: Itong short na ito, (pointing to a dirty white short placed atop this
investigator's table. Subject evidence were part of evidences recovered at the crime
scene).
"17. T: Bakit mo naman ni rape yung batang babae?
S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.
"18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S: Red Horse po at saka GIN.
"19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?
S: Sa kuwarto ko po sa itaas.
"20. T: Kailan ito at anong oras nangyari?
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung
anong petsa, basta araw ng Linggo.
"21. T: Saan lugar ito nangyari?
S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.
"22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?
S: Hindi ko po alam.
"23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong
ni rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ba ito?
S: Oho.
"24. T: Nung ma-rape mo, nakaraos ka ba?
S: Naka-isa po.
"25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng 'NAKARAOS', maaari
bang ipaliwanag mo ito?
S: Nilabasan po ako ng tamod.
"26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari?
S: Nakapasok po doon sa ari nung babae.
"27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong
ginawa?
S: Natulak ko siya sa terrace.

64
"28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?
S: Inilagay ko po sa poso-negra.
"29. T: Saan makikita yung poso-negra na sinasabi mo?
S: Doon din sa malaking bahay ni ATE MARIA.
30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra?
S: Doon ko lang po inilagay.
"31. T: Bakit nga doon mo inilagay siya?
S: Natatakot po ako.
"32. T: Kanino ka natatakot?
S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.
"33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?
S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-
negra.
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?
S: Nag-iisa lang po ako. prcd
"35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa
ba siya o patay na?
S: Buhay pa po.
"36. T: Papaano mo siya pinatay?
S: Tinulak ko nga po siya sa terrace." 21
In proving sexual intercourse, it is not full or deep penetration of the victim's vagina;
rather the slightest penetration of the male organ into the female sex organ is
enough to consummate the sexual intercourse. 22 The mere touching by the male's
organ or instrument of sex of the labia of the pudendum of the woman's private
parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force was indeed
employed upon her to satisfy carnal lust. Moreover, from appellant's own account, he
pushed the victim causing the latter to hit her head on the table and fell
unconscious. It was at that instance that he ravished her and satisfied his salacious
and prurient desires. Considering that the victim, at the time of her penile invasion,
was unconscious, it could safely be concluded that she had not given free and
voluntary consent to her defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extrajudicial confession, which
he, however, claims was executed in violation of his constitutional right to counsel.
But his contention is belied by the records as well as the testimony of the lawyer who
assisted, warned and explained to him his constitutionally guaranteed pre-
interrogatory and custodial rights. As testified to by the assisting lawyer:
"Q Will you please inform the Court what was that call about?
"A We went to the station, police investigation together with Atty. Froilan
Zapanta and we were told by Police Officer Alabastro that one Larry Mahinay would
like to confess of the crime of, I think, rape with homicide.
"Q And upon reaching the investigation room of Valenzuela PNP who were the
other person present?
"A Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside
the investigation room and the parents of the child who was allegedly raped.
"Q And when you reached the investigation room do you notice whether the
accused already there?
"A The accused was already there.
"Q Was he alone?
"A He was alone, sir.
"Q So, when you were already infront of SPO1 Arnold Alabastro and the other
PNP Officers, what did they tell you, if any?

65
"A They told us together with Atty. Zapanta that this Larry Mahinay would like to
confess of the crime charged, sir.
"Q By the way, who was that Atty. Zapanta?
"A Our immediate Superior of the Public Attorney's Office.
"Q Was he also present at the start of the question and answer period to the
accused?
"A No more, sir, he already went to our office. I was left alone.
"Q But he saw the accused, Larry Mahinay?
"A Yes, sir.
"Q Now, when Atty. Zapanta left at what time did the question and answer
period start?
"A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.
"Q And when this question and answer period started, what was the first thing
that you did as assisting lawyer to the accused?
"A First, I tried to explain to him his right, sir, under the constitution.
"Q What are those right?
"A That he has the right to remain silent. That he has the right of a counsel of
his own choice and that if he has no counsel a lawyer will be appointed to him and
that he has the right to refuse to answer any question that would incriminate him.
"Q Now, after enumerating these constitutional rights of accused Larry Mahinay,
do you recall whether this constitutional right enumerated by you were reduced in
writing?
"A Yes, sir, and it was also explained to him one by one by Police Officer
Alabastro.
"Q I show to you this constitutional right which you said were reduced into
writing, will you be able to recognize the same?
"A Yes, sir.
"Q Will you please go over this and tell the Court whether that is the same
document you mentioned?
"A Yes, sir, these were the said rights reduced into writing.
ATTY. PRINCIPE:
May we request, Your Honor, that this document be marked as our Exhibit A proper.
"Q Do you recall after reducing into writing this constitutional right of the
accused whether you asked him to sign to acknowledge or to conform?
"A I was the one who asked him, sir. It was Police Officer Alabastro.
"Q But you were present?
"A I was then present when he signed.
"Q There is a signature in this constitutional right after the enumeration, before
and after there are two (2) signatures, will you please recognize the two (2)
signatures?
"A These were the same signatures signed in my presence, sir.
"Q The signature of whom?
"A The signature of Larry Mahinay, sir.
"ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my compañero
be encircled and marked as Exhibit A-1 and A-2.
"Q After you said that you apprised the accused of his constitutional right
explaining to him in Filipino, in local dialect, what was the respond of the accused?
"A Larry Mahinay said that we will proceed with his statement.
"Q What was the reply?
"A He said "Opo".
"Q Did you ask him of his educational attainment?

66
"A It was the Police Officer who asked him.
"Q In your presence?
"A In my presence, sir.
"Q And when he said or when he replied "Opo" so the question started?
"A Yes, sir.
"Q I noticed in this Exhibit A that there is also a waiver of rights, were you
present also when he signed this waiver?
"A Yes, sir, I was also present.
"Q Did you explain to him the meaning of this waiver?
"A I had also explained to him, sir.
"Q In Filipino?
"A In Tagalog, sir.
"Q And there is also a signature after the waiver in Filipino over the typewritten
name Larry Mahinay, "Nagsasalaysay", whose signature is that?
"A This is also signed in my presence.
"Q Why are you sure that this is his signature?
"A He signed in my presence, sir.
"Q And below immediately are the two (2) signatures. The first one is when Larry
Mahinay subscribed and sworn to, there is a signature here, do you recognize this
signature?
"A This is my signature, sir.
"Q And immediately after your first signature is a Certification that you have
personally examined the accused Larry Mahinay and testified that he voluntary
executed the Extra Judicial Confession, do you recognize the signature?
"A This is also my signature, sir." 23 (emphasis supplied).
Appellant's defense that two other persons brought to him the dead body of the
victim and forced him to rape the cadaver is too unbelievable. In the words of Vice-
Chancellor Van Fleet of New Jersey. 24
"Evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself — such as the common experience and
observation of mankind can approve as probable under the circumstances. We have
no test of the truth of human testimony, except its conformity to our knowledge,
observation and experience. Whatever is repugnant to these belongs to the
miraculous, and is outside of judicial cognizance."
Ultimately, all the foregoing boils down to the issue of credibility of witnesses.
Settled is the rule that the findings of facts and assessment of credibility of witnesses
is a matter best left to the trial court because of its unique position of having
observed that elusive and incommunicable evidence of the witnesses' deportment on
the stand while testifying, which opportunity is denied to the appellate courts. 25 In
this case, the trial court's findings, conclusions and evaluation of the testimony of
witnesses is received on appeal with the highest respect, 26 the same being
supported by substantial evidence on record. There was no showing that the court a
quo had overlooked or disregarded relevant facts and circumstances which when
considered would have affected the outcome of this case 27 or justify a departure
from the assessments and findings of the court below. The absence of any improper
or ill-motive on the part of the principal witnesses for the prosecution all the more
strengthens the conclusion that no such motive exists. 28 Neither was any wrong
motive attributed to the police officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is correct. Under
Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 "when by
reason or on occasion of the rape, a homicide is committed, the penalty shall be
death." This special complex crime is treated by law in the same degree as qualified

67
rape — that is, when any of the 7 (now 10) "attendant circumstances" enumerated
in the law is alleged and proven, in which instances, the penalty is death. In cases
where any of those circumstances is proven though not alleged, the penalty cannot
be death except if the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which will affect the
imposition of the proper penalty in accordance with Article 63 of the RPC. However, if
any of those circumstances proven but not alleged cannot be considered as an
aggravating circumstance under Articles 14 and 15, the same cannot affect the
imposition of the penalty because Article 63 of the RPC in mentioning aggravating
circumstances refers to those defined in Articles 14 and 15. Under R.A. No. 8353, if
any of the 10 circumstances is alleged in the information/complaint, it may be
treated as a qualifying circumstance. But if it is not so alleged, it may be considered
as an aggravating circumstance, in which case the only penalty is death — subject to
the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed by law for
the crime of "rape with homicide", the court has no option but to apply the same
"regardless of any mitigating or aggravating circumstance that may have attended
the commission of the crime" 29 in accordance with Article 63 of the RPC, as
amended. 30 This case of rape with homicide carries with it penalty of death which is
mandatorily imposed by law within the import of Article 47 of the RPC, as amended,
which provides:
"The death penalty shall be imposed in all cases in which it must be imposed under
existing laws, except when the guilty person is below eighteen (18) years of age at
the time of the commission of the crime or is more than seventy years of age or
when upon appeal or automatic review of the case by the Supreme Court, the
required majority vote is not obtained for the imposition of the death penalty, in
which cases the penalty shall be reclusion perpetua." (emphasis supplied).
In an apparent but futile attempt to escape the imposition of the death penalty,
appellant tried to alter his date of birth to show that he was only 17 years and a few
months old at the time he committed the rape and thus, covered by the proscription
on the imposition of death if the guilty person is below eighteen (18) years at the
time of the commission of the crime. 31 Again, the record rebuffs appellant on this
point considering that he was proven to be already more than 20 years of age when
he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of
fifty thousand pesos (P50,000.00) but if the crime of rape is committed or effectively
qualified by any of the circumstances under which the death penalty is authorized by
present amended law, the civil indemnity for the victim shall be not less than
seventy-five thousand pesos (P75,000.00). 32 In addition to such indemnity, she can
also recover moral damages pursuant to Article 2219 of the Civil Code 33 in such
amount as the court deems just, without the necessity for pleading or proof of the
basis thereof. 34 Civil indemnity is different from the award of moral and exemplary
damages. 35 The requirement of proof of mental and physical suffering provided in
Article 2217 of the Civil Code is dispensed with because it is "recognized that the
victim's injury is inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se the award of moral damages". 36 Thus, it was
held that a conviction for rape carries with it the award of moral damages to the
victim without need for pleading or proof of the basis thereof. 37
Exemplary damages can also be awarded if the commission of the crime was
attended by one or more aggravating circumstances pursuant to Article 2230 of the
Civil Code 38 after proof that the offended party is entitled to moral, temperate and
compensatory damages. 39 Under the circumstances of this case, appellant is liable

68
to the victim's heirs for the amount of P75,000.00 as civil indemnity and P50,000.00
as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure that the
evidence against an accused were obtained through lawful means, the Court, as
guardian of the rights of the people lays down the procedure, guidelines and duties
which the arresting, detaining, inviting, or investigating officer or his companions
must do and observe at the time of making an arrest and again at and during the
time of the custodial interrogation 40 in accordance with the Constitution,
jurisprudence and Republic Act No. 7438: 41 It is high-time to educate our law-
enforcement agencies who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court must update in the
light of new legal developments:
1. The person arrested, detained, invited or under custodial investigation must
be informed in a language known to and understood by him of the reason for the
arrest and he must be shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and understood by
said person;
2. He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and
have the presence of an independent and competent lawyer, preferably of his own
choice;
4. He must be informed that if he has no lawyer or cannot afford the services of
a lawyer, one will be provided for him; and that a lawyer may also be engaged by
any person in his behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed
that no custodial investigation in any form shall be conducted except in the presence
of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means — telephone, radio, letter or
messenger — with his lawyer (either retained or appointed), any member of his
immediate family, or any medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be visited by/confer with duly
accredited national or international non-government organization. It shall be the
responsibility of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure that he
understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be
informed that it must be done in writing AND in the presence of counsel, otherwise,
he must be warned that the waiver is void even if he insist on his waiver and
chooses to speak;
9. That the person arrested must be informed that he may indicate in any
manner at any time or stage of the process that he does not wish to be questioned
with warning that once he makes such indication, the police may not interrogate him
if the same had not yet commenced, or the interrogation must cease if it has already
begun;
10. The person arrested must be informed that his initial waiver of his right to
remain silent, the right to counsel or any of his rights does not bar him from invoking
it at any time during the process, regardless of whether he may have answered
some questions or volunteered some statements;

69
11. He must also be informed that any statement or evidence, as the case may
be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory,
in whole or in part, shall be inadmissible in evidence.
Four members of the Court — although maintaining their adherence to the separate
opinions expressed in People v. Echegaray 42 that R.A. No. 7659, insofar as it
prescribes the death penalty, is unconstitutional — nevertheless submit to the ruling
of the Court, by a majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of
civil indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS
P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the records of this case be
forthwith forwarded to the Office of the President for possible exercise of the
pardoning power. dctai
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ.,
concur.

VIII. Rules of Electronic Evidence (effective August 1, 2001).


Republic of the Philippines
SUPREME COURT
Manila

A.M. No. 01-7-01-SC July 17, 2001

RULES ON ELECTRONIC EVIDENCE

Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of
Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic
Evidence for this Court's consideration and approval, the Court Resolved to APPROVED the
same.

The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules
shall take effect on the first day of August 2001 following thier publication before the 20th of July
in two newspapers of general circulation in the Philippines

17th July 2001.

RULES ON ELECTRONIC EVIDENCE

Rule 1
COVERAGE

Section 1.Scope. – Unless otherwise provided herein, these Rules shall apply whenever an
electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in
evidence.

Section 2.Cases covered. – These Rules shall apply to all civil actions and proceedings, as well

70
as quasi-judicial and administrative cases.

Section 3.Application of other rules on evidence. – In all matters not specifically covered by these
Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall
apply.

Rule 2
DEFINITION OF TERMS AND CONSTRUCTION

Section 1.Definition of terms. – For purposes of these Rules, the following terms are defined, as
follows:

(a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key
pair, consisting of a private key for creating a digital signature, and a public key for verifying the
digital signature.

(b) "Business records" include records of any business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or
illegitimate purposes.

(c) "Certificate" means an electronic document issued to support a digital signature which
purports to confirm the identity or other significant characteristics of the person who holds a
particular key pair.

(d) "Computer" refers to any single or interconnected device or apparatus, which, by electronic,
electro-mechanical or magnetic impulse, or by other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information,
data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any
one or more of these functions.

(e) "Digital signature" refers to an electronic signature consisting of a transformation of an


electronic document or an electronic data message using an asymmetric or public cryptosystem
such that a person having the initial untransformed electronic document and the signer's public
key can accurately determine:

i. whether the transformation was created using the private key that corresponds to the signer's
public key; and

ii. whether the initial electronic document had been altered after the transformation was made.

(f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital
signature verified by the public key listed in a certificate.

(g) "Electronic data message" refers to information generated, sent, received or stored by
electronic, optical or similar means.

(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a
right is established or an obligation extinguished, or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
It includes digitally signed documents and any print-out or output, readable by sight or other
means, which accurately reflects the electronic data message or electronic document. For
purposes of these Rules, the term "electronic document" may be used interchangeably with

71
"electronic data message".

(i) "Electronic key" refers to a secret code which secures and defends sensitive information that
crosses over public channels into a form decipherable only with a matching electronic key.

(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedure employed or
adopted by a person and executed or adopted by such person with the intention of authenticating,
signing or approving an electronic data message or electronic document. For purposes of these
Rules, an electronic signature includes digital signatures.

(k) "Ephemeral electronic communication" refers to telephone conversations, text messages,


chatroom sessions, streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained.

(l) "Information and communication system" refers to a system for generating, sending, receiving,
storing or otherwise processing electronic data messages or electronic documents and includes
the computer system or other similar devices by or in which data are recorded or stored and any
procedure related to the recording or storage of electronic data messages or electronic
documents.

(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically
related public key such that the latter can verify the digital signature that the former creates.

(n) "Private key" refers to the key of a key pair used to create a digital signature.

(o) "Public key" refers to the key of a key pair used to verify a digital signature.

Section 2.Construction. – These Rules shall be liberally construed to assist the parties in
obtaining a just, expeditious, and inexpensive determination of cases.

The interpretation of these Rules shall also take into consideration the international origin of
Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

Rule 3
ELECTRONIC DOCUMENTS

Section 1.Electronic documents as functional equivalent of paper-based documents. – Whenever


a rule of evidence refers to the term writing, document, record, instrument, memorandum or any
other form of writing, such term shall be deemed to include an electronic document as defined in
these Rules.

Section 2.Admissibility. – An electronic document is admissible in evidence if it complies with the


rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in
the manner prescribed by these Rules.

Section 3.Privileged communication. – The confidential character of a privileged communication


is not lost solely on the ground that it is in the form of an electronic document.

Rule 4
BEST EVIDENCE RULE

72
Section 1.Original of an electronic document. – An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is a printout or output
readable by sight or other means, shown to reflect the data accurately.

Section 2.Copies as equivalent of the originals. – When a document is in two or more copies
executed at or about the same time with identical contents, or is a counterpart produced by the
same impression as the original, or from the same matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other equivalent techniques which accurately
reproduces the original, such copies or duplicates shall be regarded as the equivalent of the
original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as
the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

Section 1.Burden of proving authenticity. – The person seeking to introduce an electronic


document in any legal proceeding has the burden of proving its authenticity in the manner
provided in this Rule.

Section 2.Manner of authentication. – Before any private electronic document offered as


authentic is received in evidence, its authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by
the Supreme Court or by law for authentication of electronic documents were applied to the
document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Section 3.Proof of electronically notarized document. – A document electronically notarized in


accordance with the rules promulgated by the Supreme Court shall be considered as a public
document and proved as a notarial document under the Rules of Court.

Rule 6
ELECTRONIC SIGNATURES

Section 1.Electronic signature. – An electronic signature or a digital signature authenticated in


the manner prescribed hereunder is admissible in evidence as the functional equivalent of the
signature of a person on a written document.

Section 2.Authentication of electronic signatures. – An electronic signature may be authenticated


in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital signature and verify
the same;

73
(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the genuineness of the electronic
signature.

Section 3.Disputable presumptions relating to electronic signatures. – Upon the authentication of


an electronic signature, it shall be presumed that:

(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of authenticating or
approving the electronic document to which it is related or to indicate such person's consent to
the transaction embodied therein; and

(c) The methods or processes utilized to affix or verify the electronic signature operated without
error or fault.

Section 4.Disputable presumptions relating to digital signatures. – Upon the authentication of a


digital signature, it shall be presumed, in addition to those mentioned in the immediately
preceding section, that:

(a) The information contained in a certificate is correct;

(b) The digital signature was created during the operational period of a certificate;

(c) No cause exists to render a certificate invalid or revocable;

(d) The message associated with a digital signature has not been altered from the time it was
signed; and,

(e) A certificate had been issued by the certification authority indicated therein.

Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

Section 1.Factors for assessing evidentiary weight. – In assessing the evidentiary weight of an
electronic document, the following factors may be considered:

(a) The reliability of the manner or method in which it was generated, stored or communicated,
including but not limited to input and output procedures, controls, tests and checks for accuracy
and reliability of the electronic data message or document, in the light of all the circumstances as
well as any relevant agreement;

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is recorded or stored,
including but not limited to the hardware and computer programs or software used as well as
programming errors;

(d) The familiarity of the witness or the person who made the entry with the communication and
information system;

74
(e) The nature and quality of the information which went into the communication and information
system upon which the electronic data message or electronic document was based; or

(f) Other factors which the court may consider as affecting the accuracy or integrity of the
electronic document or electronic data message.

Section 2.Integrity of an information and communication system. – In any dispute involving the
integrity of the information and communication system in which an electronic document or
electronic data message is recorded or stored, the court may consider, among others, the
following factors:

(a) Whether the information and communication system or other similar device was operated in a
manner that did not affect the integrity of the electronic document, and there are no other
reasonable grounds to doubt the integrity of the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the proceedings with
interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and ordinary course of
business by a person who is not a party to the proceedings and who did not act under the control
of the party using it.

Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

Section 1.Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar
means at or near the time of or from transmission or supply of information by a person with
knowledge thereof, and kept in the regular course or conduct of a business activity, and such was
the regular practice to make the memorandum, report, record, or data compilation by electronic,
optical or similar means, all of which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule on hearsay evidence.

Section 2.Overcoming the presumption. – The presumption provided for in Section 1 of this Rule
may be overcome by evidence of the untrustworthiness of the source of information or the
method or circumstances of the preparation, transmission or storage thereof.

Rule 9
METHOD OF PROOF

Section 1.Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of
an electronic document may be established by an affidavit stating facts of direct personal
knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained therein.

Section 2.Cross-examination of deponent. – The affiant shall be made to affirm the contents of
the affidavit in open court and may be cross-examined as a matter of right by the adverse party.

Rule 10
EXAMINATION OF WITNESSES

Section 1.Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these
Rules, the court may authorize the presentation of testimonial evidence by electronic means.
Before so authorizing, the court shall determine the necessity for such presentation and prescribe

75
terms and conditions as may be necessary under the circumstances, including the protection of
the rights of the parties and witnesses concerned.

Section 2.Transcript of electronic testimony. – When examination of a witness is done


electronically, the entire proceedings, including the questions and answers, shall be transcribed
by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as
correct the transcript done by him. The transcript should reflect the fact that the proceedings,
either in whole or in part, had been electronically recorded.

Section 3.Storage of electronic evidence. – The electronic evidence and recording thereof as
well as the stenographic notes shall form part of the record of the case. Such transcript and
recording shall be deemed prima facie evidence of such proceedings.

Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1.Audio, video and similar evidence. – Audio, photographic and video evidence of
events, acts or transactions shall be admissible provided it shall be shown, presented or
displayed to the court and shall be identified, explained or authenticated by the person who made
the recording or by some other person competent to testify on the accuracy thereof.

Section 2.Ephemeral electronic communications. – Ephemeral electronic communications shall


be proven by the testimony of a person who was a party to the same or has personal knowledge
thereof. In the absence or unavailability of such witnesses, other competent evidence may be
admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be


covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document, then the
provisions of Rule 5 shall apply.

Rule 12
EFFECTIVITY

Section 1.Applicability to pending cases. – These Rules shall apply to cases pending after their
effectivity.

Section 2.Effectivity. – These Rules shall take effect on the first day of August 2001 following
their publication before the 20th of July 2001 in two newspapers of general circulation in the
Philippines.

IX (Trinidad v. Court of Appeals, 289 SCRA 188 [1998]

ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES
TRINIDAD, respondents.
Public Attorney's Office for petitioner.
Liberato R. Ibadlit for private respondents.
SYNOPSIS
Patricio Trinidad died leaving four (4) parcels of land to his three children, Inocentes Trinidad and
the private respondents Felix Trinidad and Lourdes Trinidad. Petitioner Arturio Trinidad, claiming to
be the legitimate son of the late Inocentes Trinidad, filed with the Court of First Instance an action for
partition and damages demanding from private respondents the partition of the aforesaid land into

76
three (3) equal shares and to give him the one-third (1/3) individual share of his late father. Private
respondents denied the claim of the petitioner contending that Inocentes was single when he died.
Petitioner, in order to prove his filiation, he presented a Certificate of Baptism, a Certificate of Loss
issued by the Civil Registrar of Kalibo, Aklan attesting that the records of births, deaths and
marriages were either lost, burned or destroyed during the Japanese occupation of the said
municipality, family pictures of the petitioner at childbirth with private respondents and other family
members, a witness who was personally present during the nuptial of petitioner's parents, and
another witness who testified that petitioners parents deported themselves as husband and wife
after the marriage. The trial court rendered a decision in favor of the petitioner. On appeal, the Court
of Appeals reversed the decision of the trial court on the ground that petitioner failed to adduce
sufficient evidence to prove that his parents were validly married, and that he was recognized as the
legitimate son of the late Inocentes Trinidad. The appellate court likewise held that acquisitive
prescription has set in. Hence, this petition. cAaDHT
The merits of this petition were patent. The partition of the late Patricio's real properties requires
preponderant proof that petitioner is a co-owner or co-heir of the decedent's estate. His right as a co-
owner would, in turn, depend on whether he was born during the existence of a valid and subsisting
marriage between his mother and his putative father. The Supreme Court held that such burden was
successfully discharged by petitioner and, thus, the reversal of the Decision and Resolution of the
Court of Appeals was inevitable. Moreover, the Court found that the totality of petitioner's positive
evidence clearly preponderates over private respondents' self-serving negations. The Court also
ruled that private respondents have not acquired ownership of the property in question by
acquisitive prescription since there was no evidence that the co-ownership of petitioner's father over
the land was repudiated by the private respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; EXCEPTIONS TO HEARSAY RULE; ACT OR DECLARATION
ABOUT PEDIGREE; NON-PRESENTMENT OF CONTRACT OF MARRIAGE NOT FATAL; OTHER
COMPETENT EVIDENCE AS PROOF OF EXISTENCE OF MARRIAGE, ENUMERATED. — To prove the
fact of marriage, the following would constitute competent evidence: the testimony of a witness to
the matrimony, the couple's public and open cohabitation as husband and wife after the alleged
wedlock, the birth and the baptismal certificates of children born during such union, and the mention
of such nuptial in subsequent documents. In the case at bar, petitioner secured a certification from
the Office of the Civil Registrar of Aklan that all records of births, deaths and marriages were either
lost, burned or destroyed during the Japanese occupation of said municipality. This fact, however, is
not fatal to petitioner's case. Although the marriage contract is considered the primary evidence of
the marital union, petitioner's failure to present it is not proof that no marriage took place, as other
forms of relevant evidence may take its place.
2. ID.; ID.; ID.; COMMON REPUTATION; WITNESS TESTIMONY IN CASE AT BAR CONSIDERED
AS COMMON REPUTATION RESPECTING MARRIAGE. — In place of a marriage contract, two
witnesses were presented by petitioner: Isabel Meren, who testified that she was present during the
nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo,
who testified that the couple deported themselves as husband and wife after the marriage. Gerardo,
the 77-year old barangay captain of Tigayon and former board member of the local parent-teachers'
association, used to visit Inocentes and Felicidad's house twice or thrice a week, as she lived only
thirty meters away. On July 21, 1943, Gerardo dropped by Inocentes' house when Felicidad gave
birth to petitioner. She also attended petitioner's baptismal party held at the same house. Her
testimony constitutes evidence of common reputation respecting marriage. It further gives rise to the
disputable presumption that a man and a woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.
3. ID.; ID.; ID.; ACT OR DECLARATION ABOUT PEDIGREE; BAPTISMAL CERTIFICATE; MEANS
ALLOWED UNDER THE LAW TO SHOW PEDIGREE. — Although a baptismal certificate is indeed not a
conclusive proof of filiation it is one of "the other means allowed under the Rules of Court and special
laws" to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals. TAacHE
4. ID.; ID.; ID.; FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE; FAMILY
PICTURES, NOT DIRECT PROOF OF FILIATION BUT SHOWS ACCEPTANCE OF FILIATION ANTE

77
LITEM MOTAM. — To prove his filiation, he presented in evidence two family pictures. The first
family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife
(Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioner's first daughter,
and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit
B-1) carrying petitioner's first child (Exhibit B-2). These pictures were taken before the case was
instituted. Although they do not directly prove petitioner's filiation to Inocentes, they show that
petitioner was accepted by the private respondents as Inocentes' legitimate son ante litem motam.
5. ID.; ID.; ID.; ACT OR DECLARATION ABOUT PEDIGREE; CONSISTENT USE OF FATHER'S
SURNAME WITHOUT OBJECTION FROM ADVERSE PARTY IS PRESUMPTIVE PROOF OF FILIATION.
— Furthermore, petitioner consistently used Inocentes' surname (Trinidad) without objection from
private respondents — a presumptive proof of his status as Inocentes' legitimate child.
6. ID.; ID.; WEIGHT AND SUFFICIENCY; PREPONDERANT EVIDENCE; CONSTRUED; WEIGHT OF
EVIDENCE IN CASE AT BAR IS IN PETITIONER'S FAVOR. — Preponderant evidence means that, as a
whole, the evidence adduced by one side outweighs that of the adverse party. Compared to the
detailed (even if awkwardly written) ruling of the trial court, Respondent Court's holding that
petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where
the preponderance of evidence lies, a trial court may consider all the facts and circumstances of the
case, including the witnesses' manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts, the probability or improbability
of their testimony, their interest or want thereof, and their personal credibility. Applying this rule,
the trial court significantly and convincingly held that the weight of evidence was in petitioner's
favor. DTaAHS
7. CIVIL LAW; CO-OWNERSHIP; ACQUISITIVE PRESCRIPTION DOES NOT RUN AGAINST OR IN
FAVOR OF A CO-OWNER IN THE ABSENCE OF REPUDIATION OF THE CO-OWNERSHIP. — Private
respondents have not acquired ownership of the property in question by acquisitive prescription. In
a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-
ownership. Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners
or co-heirs, so long as he or she expressly or impliedly recognizes the co-ownership.
8. ID.; ID.; ID.; CLAIM OVER THE LAND NOT YET TIME-BARRED; CASE AT BAR. — In this
particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a
co-owner, was receiving from private respondents his share of the produce of the land in dispute.
Until such time, recognition of the co-ownership by private respondents was beyond question. There
is no evidence, either, of their repudiation, if any, of the co-ownership of petitioner's father Inocentes
over the land. Further, the titles of these pieces of land were still in their father's name. Although
private respondents had possessed these parcels openly since 1940 and had not shared with
petitioner the produce of the land during the pendency of this case, still, they manifested no
repudiation of the co-ownership. Considering the foregoing, Respondent Court committed reversible
error in holding that petitioner's claim over the land in dispute was time-barred. cCaIET
DECISION
PANGANIBAN, J p:
In the absence of a marriage contract and a birth certificate, how may marriage and filiation be
proven? LLphil
The Case
This is the main question raised in this petition for review on certiorari challenging the Court of
Appeals 1 Decision promulgated on December 1, 1994 2 and Resolution promulgated on February 8,
1995 3 in CA-GR CV No. 23275, which reversed the decision of the trial court and dismissed
petitioner's action for partition and damages.
On August 10, 1978, Petitioner Arturio Trinidad filed a complaint 4 for partition and damages against
Private Respondents Felix and Lourdes, both surnamed Trinidad, before the Court of First Instance of
Aklan, Branch I. 5 On October 28, 1982, Felix died without issue, so he was not substituted as a party.
6
On July 4, 1989, the trial court rendered a twenty-page decision 7 in favor of the petitioner, in which
it ruled: 8

78
"Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes
Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4
parcels of land subject matter of this case. Although the plaintiff had testified that he had been
receiving [his] share from said land before and the same was stopped, there was no evidence
introduced as to what year he stopped receiving his share and for how much. This court therefore
cannot rule on that."
In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner
failed to adduce sufficient evidence to prove that his parents were legally married to each other and
that acquisitive prescription against him had set in. The assailed Decision disposed: 9
"WHEREFORE, the Court REVERSES the appealed decision.
In lieu thereof, the Court hereby DISMISSES the [petitioner's] complaint and the counterclaim
thereto.
Without costs."
Respondent Court denied reconsideration in its impugned Resolution which reads: 10
"The Court DENIES defendants-appellants' motion for reconsideration, dated December 15, 1994, for
lack of merit. There are no new or substantial matters raised in the motion that merit the
modification of the decision."
Hence, this petition. 11
The Facts
The assailed Decision recites the factual background of this case, as follows: 12
"On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan,
Kalibo, Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he
was the son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the
original owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of
land to his three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the
defendants to partition the land into three (3) equal shares and to give him the one-third (1/3)
individual share of his late father, but the defendants refused.
In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late
Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941, before
plaintiff's birth. Defendants also denied that plaintiff had lived with them, and claimed that the
parcels of land described in the complaint had been in their possession since the death of their father
in 1940 and that they had not given plaintiff a share in the produce of the land.
Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes,
Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four (4)
parcels of land, all situated at Barrio Tigayon, Kalibo, Aklan.
Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes
Trinidad.
Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the
marriage, Arturio demanded from the defendants that the above-mentioned parcels of land be
partitioned into three (3) equal shares and that he be given the one-third (1/3) individual shares of
his late father, but defendants refused.
In order to appreciate more clearly the evidence adduced by both parties, this Court hereby
reproduces pertinent portions of the trial court's decision: 13
"EVIDENCE FOR THE PLAINTIFF:
Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in 1981)
who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before
being elected as barrio captain she held the position of barrio council-woman for 4 years. Also she
was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon, Kalibo,
Aklan. That she knows the plaintiff because they are neighbors and she knows him from the time of
his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato;
both were already dead, Inocentes having died in 1944 and his wife died very much later. Witness
recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the
birth of the plaintiff, the house of the witness was about 30 meters away from plaintiff's parents[']
house and she used to go there 2 or 3 times a week. That she knows both the defendants as they are

79
also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio because
Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix and
Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,] all
surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land which
are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because they are
located in Barrio Tigayon.
When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered
and mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio
Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died before
the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and Lourdes.
Since then the land was never partitioned or divided among the 3 children of Patricio.
A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the
picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as
Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife
of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix
Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the
plaintiff and the defendants in this case, witness answered yes.
Another picture marked as Exhibit B was presented to the witness for identification. She testified the
woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child
which witness identified as the child Arturio Trinidad. When asked by the court when . . . the picture
[was] taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was
baptized, witness answered yes, as she had gone to the house of his parents. Witness then identified
the certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1
and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were
marked as Exhibit C-2. The date of birth being July 21, 1943 was also marked. The signature of
Monsignor Iturralde was also identified.
On cross-examination, witness testified that she [knew] the land in question very well as she used to
pass by it always. It was located just near her house but she cannot exactly tell the area as she merely
passes by it. When asked if she [knew] the photographer who took the pictures presented as Exhibit
A and B, witness answered she does not know as she was not present during the picture taking.
However, she can identify everybody in the picture as she knows all of them.
At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister,
Lourdes Trinidad, who is his co-defendant in this case.
Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified
having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and
Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of
land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the
plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano
Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer she
also owns a parcel of land [and] she used to invite Felicidad and Lourdes to help her during planting
and harvesting season. That she knows that during the lifetime of Inocentes the three of them,
Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their father,
Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the property
without giving the widow of Inocentes any share of the produce. As Lourdes outlived her two
brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4 parcels of
land up to the present. The witness testified that upon the death of Inocentes, Lourdes took Arturio
and cared for him when he was still small, about 3 years old, until Arturio grew up and got married.
That while Arturio was growing up, he had also enjoyed the produce of the land while he was being
taken care of by Lourdes Trinidad. That a misunderstanding later on arose when Arturio Trinidad
wanted to get his father's share but Lourdes Trinidad will not give it to him. LLphil
Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants,
Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father.
That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That

80
both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in
Tigayon, his father having died in 1944 and his mother about 25 years ago.
As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of
baptism which had been previously marked as Exhibit C. That his birth certificate was burned during
World War 2 but he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan.
When he was 14 years old, the defendants invited him to live with them being their nephew as his
mother was already dead. Plaintiff's mother died when he was 13 years old. They treated him well
and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the house
of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then they
were invited by the defendants to live with them. So he and his wife and children lived with the
defendants. As proof that he and his family lived with the defendants when the latter invited him to
live with them, he presented a picture previously marked as Exhibit B where there appears his aunt,
Lourdes Trinidad, carrying plaintiff's daughter, his uncle and his wife. In short, it is a family picture
according to him. Another family picture previously marked Exhibit A shows his uncle, defendant
Felix Trinidad, carrying plaintiff's son. According to him, these 2 pictures were taken when he and his
wife and children were living with the defendants. That a few years after having lived with them, the
defendants made them vacate the house for he requested for partition of the land to get his share. He
moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in
controversy of which parcel 1 is an upland.
Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100 coconuts
every 4 months and the cost of coconuts is P2.00 each. The boundaries are: East-Federico Inocencio;
West-Teodulo Dionesio; North-Teodulo Dionesio; and South-Bulalio Briones: located at Tigayon.
Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo
groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are East-Ambrosio Trinidad; North-
Federico Inocencio; West Patricio Trinidad and South-Gregorio Briones.
Parcel 3 is about 12,000 square meters and ¼ of that belongs to Patricio Trinidad, the deceased
father of the defendants and Inocentes, the father of the plaintiff.
Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a years
[sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico Inocencio
and North-Digna Carpio.
Parcel 1 is Lot No. 903.
Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540
square meters is the subject of litigation.
Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with
reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half
share.
Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the
cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones.
Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is covered
by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No. 11637 for
Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the
name of Patricio Trinidad.
On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the
share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father
is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington,
Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New
Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time.
That he does not have the death certificate of his father who died in 1944 because it was wartime.
That after the death of his father, he lived with his mother and when his mother died[ ]"he lived with
his aunt and uncle, the defendants in this case That during the lifetime of his mother, it was his
mother receiving the share of the produce of the land. That both defendants, namely Lourdes and
Felix Trinidad, are single and they have no other nephews and nieces. That [petitioner's] highest
educational attainment is Grade 3.
EVIDENCE FOR THE DEFENDANTS:

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First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of
Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They
being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones and
his father are sister and brother. That he also knew Trinidad being the brother of Felix and Lourdes
and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and at the time of
his death Inocentes Trinidad was not married. That he knew this fact because at the time of the death
of Inocentes Trinidad he was then residing with his aunt, "Nanay Taya", referring to Anastacia
Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes Trinidad.
That at the time of the death of Inocentes Trinidad, according to this witness he stayed with his aunt,
Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he knew
Inocentes Trinidad cohabited with anybody before his death, he answered, "That I do not know",
neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked if he can
recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said Inocentes
Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could not recall
because he was then in Manila working. That after the war, he had gone back to the house of his aunt,
Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does not know the
plaintiff, Arturio Trinidad. When asked if after the death of Inocentes Trinidad, he knew anybody
who has stayed with the defendants who claimed to be a son of Inocentes Trinidad, witness, Pedro
Briones, answered: "I do not know about that."
On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he
started to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When
asked if he was aware of the 4 parcels of land which is the subject matter of this case before the court,
witness answered that he does not know. What he knew is that among the 3 children of Patricio
Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940, according to
the witness when cross examined, Inocentes Trinidad was around 65 years old. That according to
him, his aunt, Anastacia Briones, was already dead before the war. When asked on cross examination
if he knew where Inocentes Trinidad was buried when he died in 1940, witness answered that he
was buried in their own land because the Japanese forces were roaming around the place. When
confronted with Exhibit A which is the alleged family picture of the plaintiff and the defendants,
witness was able to identify the lady in the picture, which had been marked as Exhibit A-1, as
Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix
Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know
him.
Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that she
is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he is
already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother,
Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon in
1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only
for 15 days before he died. While his brother was in Manila, witness testified she was not aware that
he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married.
When asked if she knew one by the name of Felicidad Molato, witness answered she knew her
because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w if
her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked if
she knew the plaintiff, Arturio Trinidad, she said, 'Yes,' but she denied that Arturio Trinidad had lived
with them. According to the witness, Arturio Trinidad did not live with the defendants but he stayed
with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having died
already. When asked by the court if there had been an instance when the plaintiff had lived with her
even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit her
in her house, witness also said, 'He did not.'
Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents,
Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad
and herself. But inasmuch as Felix and Inocentes are already dead, she is the only remaining
daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad,
testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that

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her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does
not have any family of her own for she has [no] husband or children. According to her[,] when
Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody
will carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese
forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March
1941 because the war broke out in December 1941 and March 1941 was still peace time, the witness
could not answer the question. When she was presented with Exhibit A which is the alleged family
picture wherein she was holding was [sic] the child of Arturio Trinidad, she answered; 'Yes.' and the
child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she was only
requested to hold this child to be brought to the church because she will be baptized and that the
baptism took place in the parish church of Kalibo. When asked if there was a party, she answered;
'Maybe there was.' When confronted with Exhibit A-1 which is herself in the picture carrying the
child, witness identified herself and explained that she was requested to bring the child to the church
and that the picture taken together with her brother and Arturio Trinidad and the latter's child was
taken during the time when she and Arturio Trinidad did not have a case in court yet. She likewise
identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix. When asked
if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff, witness
answered she does not know because her eyes are already blurred. Furthermore, when asked to
identify the woman in the picture who was at the right of the child held by her brother, Felix, and
who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that she
cannot identify because she had a poor eyesight neither can she identify plaintiff, Arturio Trinidad,
holding another child in the picture for the same reason. When asked by counsel for the plaintiff if
she knows that the one who took this picture was the son of Ambrosio Trinidad by the name of Julito
Trinidad who was also their cousin, witness testified that she does not know.
Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew
Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew the
defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her cousins.
She testified that a few months after the war broke out Inocentes Trinidad died in their lola's house
whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had lived
almost in his lifetime in Manila and he went home only when his father fetched him in Manila
because he was already sick. That according to her, about 1½ months after his arrival from Manila,
Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato
had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes
Trinidad died. According to her she was born in 1928, therefore, she was 13 or 14 years old when the
war broke out. When asked if she can remember that it was only in the early months of the year 1943
when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that Inocentes
Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese forces and
nobody would carry his body to be buried in the Poblacion.
For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident of
Tigayon. Rebuttal witness testified that . . . she knew both the [petitioner] and the [private
respondents] in this case very well as her house is only around 200 meters from them. When asked if
it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and
he lived only for 15 days and died, witness testified that he did not die in that year because he died in
the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which is
only across the street from her house. According to the said rebuttal witness, it is not true that
Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he
married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was
personally present when couple was married by Lauriano Lajaylajay, a protestant pastor.
On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he
was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be
Catholics but that according to her, their marriage was solemnized by a Protestant minister and she
was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato,
Lourdes Trinidad and Felix Trinidad were also present.

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When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present a
marriage contract of his parents but instead a certification dated September 5, 1978 issued by one
Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan,
attesting to the fact that records of births, deaths, and marriages in the municipality of New
Washington were destroyed during the Japanese time."
Respondent Court's Ruling
In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad,
Respondent Court ruled: 14
"We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that
he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed.
Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes Trinidad,
in the record of birth or a final judgment, in a public document or a private handwritten instrument,
or that he was in continuous possession of the status of a legitimate child.
Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that Inocentes
Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in rebuttal for
the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan, on May 5,
1942, solemnized by a pastor of the protestant church and that she attended the wedding ceremony
(t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage, nor of
Inocentes' acknowledgment of plaintiff as his son, who was born on July 21, 1943.
The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of
the interested parties openly and adversely occupies the property without recognizing the co-
ownership (Cordova vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may set in
(Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497).
Admittedly, the defendants have been in possession of the parcels of land involved in the concept of
owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff
attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus
acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the
Philippines)."
The Issues
Petitioner submits the following issues for resolution: 15
"1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the
marriage of his parents.
2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that
he is the son of the late Inocentes Trinidad, brother of private respondents (defendants-appellants)
Felix and Lourdes Trinidad.
3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional
Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on
August 3, 1988.
4. Whether or not petitioner's status as a legitimate child can be attacked collaterally by the
private respondents. LLphil
5. Whether or not private respondent (defendants-appellants) have acquired ownership of the
properties in question by acquisitive prescription."
Simply stated, the main issues raised in this petition are:
1. Did petitioner present sufficient evidence of his parents' marriage and of his filiation?
2. Was petitioner's status as a legitimate child subject to collateral attack in the action for
partition?
3. Was his claim time-barred under the rules on acquisitive prescription?
The Court's Ruling
The merits of this petition are patent. The partition of the late Patricio's real properties requires
preponderant proof that petitioner is a co-owner or co-heir of the decedent's estate. 16 His right as a
co-owner would, in turn, depend on whether he was born during the existence of a valid and
subsisting marriage between his mother (Felicidad) and his putative father (Inocentes). This Court
holds that such burden was successfully discharged by petitioner and, thus, the reversal of the
assailed Decision and Resolution is inevitable.

84
First and Second Issues: Evidence of and Collateral Attack on Filiation
At the outset, we stress that an appellate court's assessment of the evidence presented by the parties
will not, as a rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the
contradictory conclusions of the appellate and the trial courts, such rule does not apply here. So, we
had to meticulously pore over the records and the evidence adduced in this case. 17
Petitioner's first burden is to prove that Inocentes and his mother (Felicidad) were validly married,
and that he was born during the subsistence of their marriage. This, according to Respondent Court,
he failed to accomplish.
This Court disagrees. Pugeda vs. Trias 18 ruled that when the question of whether a marriage has
been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the
fact of marriage, the following would constitute competent evidence: the testimony of a witness to
the matrimony, the couple's public and open cohabitation as husband and wife after the alleged
wedlock, the birth and the baptismal certificates of children born during such union, and the mention
of such nuptial in subsequent documents. 19
In the case at bar, petitioner secured a certification 20 from the Office of the Civil Registrar of Aklan
that all records of births, deaths and marriages were either lost, burned or destroyed during the
Japanese occupation of said municipality. This fact, however, is not fatal to petitioner's case. Although
the marriage contract is considered the primary evidence of the marital union, petitioner's failure to
present it is not proof that no marriage took place, as other forms of relevant evidence may take its
place. 21
In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who
testified that she was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New
Washington, Aklan; and Jovita Gerardo, who testified that the couple deported themselves as
husband and wife after the marriage. Gerardo, the 77-year old barangay captain of Tigayon and
former board member of the local parent-teachers' association, used to visit Inocentes and
Felicidad's house twice or thrice a week, as she lived only thirty meters away. 22 On July 21, 1943,
Gerardo dropped by Inocentes' house when Felicidad gave birth to petitioner. She also attended
petitioner's baptismal party held at the same house. 23 Her testimony constitutes evidence of
common reputation respecting marriage. 24 It further gives rise to the disputable presumption that a
man and a woman deporting themselves as husband and wife have entered into a lawful contract of
marriage. 25 Petitioner also presented his baptismal certificate (Exhibit C) in which Inocentes and
Felicidad were named as the child's father and mother. 26
On the other hand, filiation may be proven by the following:
"ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the
Civil Register, or by an authentic document or a final judgment.
ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be
proved by the continuous possession of status of a legitimate child.
ART. 267. In the absence of a record of birth, authentic document, final judgment or
possession of status, legitimate filiation may be proved by any other means allowed by the Rules of
Court and special laws." 27
Petitioner submitted in evidence a certification 28 that records relative to his birth were either
destroyed during the last world war or burned when the old town hall was razed to the ground on
June 17, 1956. To prove his filiation, he presented in evidence two family pictures, his baptismal
certificate and Gerardo's testimony.
The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and
his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioner's first
daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad
(Exhibit B-1) carrying petitioner's first child (Exhibit B-2). These pictures were taken before the case
was instituted. Although they do not directly prove petitioner's filiation to Inocentes, they show that
petitioner was accepted by the private respondents as Inocentes' legitimate son ante litem motam.
Lourdes' denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows
her holding Clarita Trinidad, the petitioner's daughter, she demurred that she did so only because
she was requested to carry the child before she was baptized. 29 When shown Exhibit A, she

85
recognized her late brother — but not petitioner, his wife and the couple's children — slyly
explaining that she could not clearly see because of an alleged eye defect. 30
Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of "the other
means allowed under the Rules of Court and special laws" to show pedigree, as this Court ruled in
Mendoza vs. Court of Appeals: 31
"What both the trial court and the respondent court did not take into account is that an illegitimate
child is allowed to establish his claimed filiation by 'any other means allowed by the Rules of Court
and special laws,' according to the Civil Code, or 'by evidence of proof in his favor that the defendant
is her father,' according to the Family Code. Such evidence may consist of his baptismal certificate, a
judicial admission, a family Bible in which his name has been entered, common reputation respecting
his pedigree, admission by silence, the testimony of witnesses, and other kinds of proof admissible
under Rule 130 of the Rules of Court. [Justice Alicia Sempio-Diy, Handbook on the Family Code of the
Phil. 1988 ed., p. 246]"
Concededly, because Gerardo was not shown to be a member of the Trinidad family by either
consanguinity or affinity, 32 her testimony does not constitute family reputation regarding pedigree.
Hence, it cannot, by itself, be used to establish petitioner's legitimacy.
Be that as it may, the totality of petitioner's positive evidence clearly preponderates over private
respondents' self-serving negations. In sum, private respondents' thesis is that Inocentes died unwed
and without issue in March 1941. Private respondents' witness, Pedro Briones, testified that
Inocentes died in 1940 and was buried in the estate of the Trinidads, because nobody was willing to
carry the coffin to the cemetery in Kalibo, which was then occupied by the Japanese forces. His
testimony, however, is far from credible because he stayed with the Trinidads for only three months,
and his answers on direct examination were noncommittal and evasive: 33
"Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or not?
A: Not married.
Q: In 1940 at the time of death of Inocentes Trinidad, where were you residing?
A: I was staying with them.
Q: When you said 'them', to whom are you referring to [sic]?
A: My aunt Nanay Taya, Anastacia.
xxx xxx xxx
Q: Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad
and his children before 1940?
A: For only three months.
Q: Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he had
cohabited with anybody before his death?
A: [T]hat I do not know.
Q: You know a person by the name of Felicidad Molato?
A: No, sir.
Q: Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody with
whom he has lived as husband and wife?
A: I could not recall because I was then in Manila working.
Q: After the war, do you remember having gone back to the house of your aunt Anastacia at
Tigayon, Kalibo, Aklan?
A: Yes, sir,
Q: How often did you go to the house of your aunt?
A: Every Sunday.
xxx xxx xxx
Q: You know the plaintiff Arturio Trinidad?
A: I do not know him.
Q: After the death of Inocentes Trinidad, do you know if there was anybody who has stayed
with the defendants who claimed to be a son of Inocentes Trinidad?
A: I do not know about that."
Beatriz Sayon, the other witness of private respondent, testified that, when the Japanese occupied
Kalibo in 1941, her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes

86
stayed with their grandmother, Eugenia Roco Trinidad, and died single and without issue in March
1941, one and a half months after his return to Tigayon. She knew Felicidad Molato, who was also a
resident of Tigayon, but denied that Felicidad was ever married to Inocentes. 34
Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of
Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes died in March 1941. 35 The
Japanese forces occupied Manila only on January 2, 1942; 36 thus, it stands to reason that Aklan was
not occupied until then. It was only then that local residents were unwilling to bury their dead in the
cemetery in Kalibo, because of the Japanese soldiers who were roaming around the area. 37
Furthermore, petitioner consistently used Inocentes' surname (Trinidad) without objection from
private respondents — a presumptive proof of his status as Inocentes' legitimate child. 38
Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of
the adverse party. 39 Compared to the detailed (even if awkwardly written) ruling of the trial court,
Respondent Court's holding that petitioner failed to prove his legitimate filiation to Inocentes is
unconvincing. In determining where the preponderance of evidence lies, a trial court may consider
all the facts and circumstances of the case, including the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature
of the facts, the probability or improbability of their testimony, their interest or want thereof, and
their personal credibility. 40 Applying this rule, the trial court significantly and convincingly held
that the weight of evidence was in petitioner's favor. It declared:
". . . [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being
their nephew . . . before plaintiff [had] gotten married and had a family of his own where later on he
started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so
lived with the defendants . . . is shown by the alleged family pictures, Exhibits A & B. These family
pictures were taken at a time when plaintiff had not broached the idea of getting his father's share. . .
His demand for the partition of the share of his father provoked the ire of the defendants, thus, they
disowned him as their nephew. . . In this case, the plaintiff enjoyed the continuous possession of a
status of the child of the alleged father by the direct acts of the defendants themselves, which status
was only broken when plaintiff demanded for the partition . . . as he was already having a family of
his own. . .
However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the
plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among
them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already 77
years old at the time she testified. Said witness had no reason to favor the plaintiff. She had been a
PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this case as
compared to the witness for the defendants who are either cousin or nephew of Lourdes Trinidad
who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old, has no
husband nor children." 41
Doctrinally, a collateral attack on filiation is not permitted. 42 Rather than rely on this axiom,
petitioner chose to present evidence of his filiation and of his parents' marriage. Hence, there is no
more need to rule on the application of this doctrine to petitioner's cause.
Third Issue: No Acquisitive Prescription
Respondent Court ruled that, because acquisitive prescription sets in when one of the interested
parties openly and adversely occupies the property without recognizing the co-ownership, and
because private respondents had been in possession — in the concept of owners — of the parcels of
land in issue since Patricio died in 1940, they acquired ownership of these parcels.
The Court disagrees. Private respondents have not acquired ownership of the property in question
by acquisitive prescription. In a co-ownership, the act of one benefits all the other co-owners, unless
the former repudiates the co-ownership. 43 Thus, no prescription runs in favor of a co-owner or co-
heir against his or her co-owners or co-heirs, so long as he or she expressly or impliedly recognizes
the co-ownership.
In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept
of a co-owner, was receiving from private respondents his share of the produce of the land in dispute.
Until such time, recognition of the co-ownership by private respondents was beyond question. There
is no evidence, either, of their repudiation, if any, of the co-ownership of petitioner's father Inocentes

87
over the land. Further, the titles of these pieces of land were still in their father's name. Although
private respondents had possessed these parcels openly since 1940 and had not shared with
petitioner the produce of the land during the pendency of this case, still, they manifested no
repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held: 44
". . . Corollarily, prescription does not run against private respondents with respect to the filing of the
action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly
or impliedly repudiated the co-ownership. In the other words, prescription of an action for partition
does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent
a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De
Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an action for
partition may be seen to be at once an action for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988])."
Considering the foregoing, Respondent Court committed reversible error in holding that petitioner's
claim over the land in dispute was time-barred.
WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and
SET ASIDE. The trial court's decision dated July 4, 1989 is REINSTATED. No costs.
SO ORDERED. LLphil
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ ., concur.

Rule 129
x. (People v. Macasling, GM, No. 90342, May 27,1993)
[G.R. No. 90342. May 27, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HILARIO MACASLING, JR. y COLOCADO,
accused-appellant.
The Solicitor General for plaintiff appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; R.A. No. 6425 (THE DANGEROUS DRUGS ACT) AS AMENDED BY
BATAS PAMBANSA BLG. 179; "SHABU" (A "STREET NAME" FOR METAMPHETAMINE
HYDROCHLORIDE; "SHABU" IS A DERIVATIVE OF A REGULATED DRUG, THE POSSESSION,
SALE, TRANSPORTATION, ADMINISTRATION, DISPENSATION, DELIVERY AND
DISTRIBUTION OF WHICH IS SUBJECT TO R.A. NO. 6425, AS AMENDED; THE USE OF
CRIMINAL INFORMATION OF THE CASUAL TERM "SHABU" INSTEAD OF ITS SCIENTIFIC
NAME DOES NOT AFFECT THE LEGAL RESPONSIBILITY OF THE ACCUSED. — This Court has
in fact taken judicial notice that shabu is a "street name" for metamphetamine hydrochloride (or "methyl
amphetamine hydrochloride"). Considering the chemical composition of shabu, the Court has declared that
shabu is a derivative of a regulated drug, the possession, sale, transportation, etc. of which is subject to the
provisions of R.A. No. 6425 as amended. It remains only to point out that, in the case at bar, the laboratory
examination conducted on the crystalline granules recovered from appellant in fact yielded the compound
metamphetamine hydrochloride. The use in the criminal information of the casual or vulgar term shabu
rather than the scientific term metamphetamine hydrochloride, does not affect the legal responsibility of
appellant under the relevant provisions of R.A. No. 6425 as amended.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION; IT IS THE CHARACTER OF
THE ACTS CHARGED IN THE CRIMINAL INFORMATION AND PROVEN AT THE TRIAL THAT
IS IMPORTANT, RATHER THAN THE CORRECTNESS OF THE DESIGNATION OF THE SECTION
AND ARTICLE OF THE STATUTE VIOLATED. — It is true, as pointed out by the trial court, that the
preambular portion of the criminal information in this case referred to violation of "Section 21 (b) in
relation to Section 4, Article II of R.A. No. 6425 as amended by Batas Pambansa Blg. 179." Section 21 (b)
of the statute reads as follows: "Sec. 21. Attempt and Conspiracy. — The same penalty prescribed by this
Act for the commission of the offense shall be imposed in case of any attempt or conspiracy to commit the

88
same in the following cases: . . . .(b) Sale, administration, delivery, distribution and transportation of
dangerous drugs; . . . Section 4, Article II of the statute deals with "sale, administration, distribution and
transportation of prohibited drugs." Upon the other hand, Section 15 of the statute is concerned with the
"sale, administration, dispensation, delivery, transportation and distribution of regulated drugs." It will be
recalled that the term "dangerous drugs" as used in the statute covers both "prohibited drugs" and
"regulated drugs." Thus, again as pointed out by the trial court, the opening clause of the criminal
information should, more precisely, have referred to Section 15 which deals with "regulated drugs" rather
than to Section 4 which refers to "prohibited drugs." This imprecision in the specification of the appropriate
section of R.A. No. 6425 as amended has, however, no consequences in the case at bar. For it is the
character of the acts charged in the criminal information and proven at the trial that is important, rather than
the correctness of the designation of the section and article of the statute violated. It should also not escape
notice that the penalty provided in Section 4: "life imprisonment to death and a fine ranging from
P20,000.00 to P30,000.00," is exactly the same penalty imposed in Section 15 of the statute.
3. ID.; ARREST WITHOUT WARRANT; ENTRAPMENT; THE WARRANTLESS ARREST OF
APPELLANT WAS MERELY THE CULMINATION OF AN ENTRAPMENT OPERATION. —
Appellant's next contention is that because he was no lawfully arrested, the package with a "Happy Days"
wrapper containing 50 grams of shabu, taken from him was inadmissible in evidence. Appellant's claim that
he was unlawfully arrested is anchored on the fact that the arresting officers had neither warrant of arrest
nor a search warrant. The basic difficulty with appellant's contention is that it totally disregards the
antecedents of the arrest of appellant inside Room No. 77 of the Hyatt Terraces Hotel. It will be recalled
that the arresting officers had been informed by the Chief of the Narcom Regional Office that a transaction
had been agreed upon by appellant in Las Piñas, Metro Manila, involving delivery of shabu, which delivery
was, however, to take place in Room No. 77 at the Hyatt Terraces Hotel in Baguio City. Only appellant
with Editha Gagarin and the undercover Narcom agent showed up at Room No. 77 at the Hyatt Terraces
Hotel and the Narcom undercover agent had signalled that appellant had with him the shabu. The reception
prepared by the arresting officers for appellant inside Room No. 77 was in fact an entrapment operation.
The sale of the shabu (understood as the meeting of the minds of seller and buyer) did not, of course, take
place in the presence of the arresting officers. The delivery or attempted delivery of the subject matter did,
however, take place in their presence.
4. ID.; ID.; EVIDENCE; CREDIBILITY OF WITNESS; THE APPRAISAL BY THE TRIAL
COURT OF THE CREDIBILITY OF THE WITNESSES IS ENTITLED TO GREAT RESPECT FROM
APPELLATE COURTS. — The trial court was not persuaded by appellant's elaborate disclaimer of
knowledge about the shabu, finding such disclaimer as contrived and improbable and not worthy of
credence. The rule, of course, is that testimony to be believed must not only originate from a credible
witness, but must also itself be credible. We see no reason, and we have been pointed to none, why the
Court should overturn the appraisal of the trial court of the credibility (or rather lack of credibility) of the
long story offered by appellant. We find no basis for departing from the basic rule that the appraisal by the
trial court of the credibility of witnesses who appeared before it is entitled to great respect from appellate
courts who do not deal with live witnesses but only with the cold pages of a written record.
5. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; THE RIGHT TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION AGAINST THE ACCUSED; THE ACTS WITH
WHICH THE ACCUSED WAS CHARGED ARE PLAINLY SET OUT IN THE OPERATIVE PORTION
OF THE CRIMINAL INFORMATION. — Appellant's contention that he had been deprived of his right to
be informed of the nature and cause of the accusation against him, is bereft of merit. The acts with which
he was charged are quite plainly set out in the operative portion of the criminal information: that appellant
"did — willfully, unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport 50
grams of shabu, knowing fully well that said shabu [is] a prohibited drug . . .". We agree with the trial court
that the use of the term "prohibited drug" was merely a conclusion of law, something which is for the Court
to determine; in the circumstances of this case, the inaccurate use of the term "prohibited drug" was also
merely a falsa descriptio.
DECISION
FELICIANO, J p:
Hilario Macasling, Jr. appeals from the Decision of the Regional Trial Court which sentenced him to suffer
life imprisonment, to pay a fine and costs of litigation.

89
Appellant Macasling was charged with violation of Republic Act ("R.A.") No. 6425, as amended, in an
information which reads as follows:
"The undersigned accuses Hilario Macasling, Jr. y Colocado for violation of Section 21(b) in relation to
Section IV, Article II of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 (Sale,
Administration, Delivery, Transportation & Distribution), committed as follows:
That on or about the 20th day of August 1988, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not authorized by law, did then and there
wilfully, unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport fifty (50) grams
of shabu, knowing fully well that said shabu [is] a prohibited drug, in violation of the above-mentioned
provision of law." 1
Appellant entered a plea of not guilty at arraignment and the case proceeded to trial. After trial, on 18
August 1989, the trial court rendered a decision with the following dispositive portion:
"WHEREFORE, in view of all the foregoing, the Court finds the accused Hilario Macasling, Jr. guilty
beyond reasonable doubt of transporting and/or attempting to deliver 50 grams of shabu in violation of
Section 21(b), Article IV in relation to Section 15, Article III, in relation to No. 2(e), Section 2, Article I of
Republic Act No. 6425, as amended, and hereby sentences him to life imprisonment and to pay the fine of
Twenty Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay
the costs.
The 50 grams of shabu contained in the wrapped package marked Happy Days (Exh. H and series) being
the subject of the crime, is hereby declared confiscated and forfeited in favor of the State and referred to the
Dangerous Drugs Board for immediate destruction.
The accused Hilario Macasling, Jr. being a detention prisoner is entitled to be credited 4/5 of his preventive
imprisonment in the service of his sentence under Article 29 of the Revised Penal Code.
So Ordered." 2
The evidence of record discloses that on 19 August 1988, at about 3:00 o'clock in the afternoon, Lt. Manuel
Obrera, Chief of the Narcotics and Intelligence Division, Integrated National Police ("INP"), Baguio City,
received a telephone call from the Chief of the Narcotics Command ("Narcom"), First Regional Unit, INP.
The latter sought the assistance of Lt. Obrera in the apprehension of appellant who, according to the
Narcom Chief, would be delivering shabu at Room No. 77 of the Hyatt Terraces Hotel in Baguio City, on
that same afternoon. Lt. Obrera quickly formed a team which include Pat. Ramoncito Bueno, Pat. Martel
Nillo and himself and hastily left for the hotel. There they were met by the Narcom Chief who informed
them that appellant Macasling had previously agreed with a Chinese businessman in Las Piñas, Metro
Manila, that appellant would deliver about 250 grams of shabu at Room No. 77 of the Hyatt Terraces Hotel.
Accordingly, Lt. Obrera and his companions waited inside Room No. 77 of the hotel, for appellant to show
up. Appellant, however, did not arrive that afternoon. Instead, he arrived at the Hyatt Terraces Hotel at
about 1:00 o'clock in the early morning of the following day, together with one Editha Gagarin and a third
person who was an undercover Narcom agent. Lt. Obrera opened the door of Room No. 77 to let appellant
and his party in, upon noticing that the Narcom agent was combing his hair, which was a pre-arranged
signal meaning that appellant had the shabu in his possession. When appellant and his party were inside
Room No. 77, Lt. Obrera and his companions identified themselves to appellant and asked him about the
shabu. Appellant handed over a small package with a wrapper marked "Happy Days" which, upon being
opened by the arresting officers, was found to contain about 50 grams of crystalline granules. 3 Appellant
and Editha Gagarin were brought to Camp Bado, Dangwa, La Trinidad, Benguet, where the fact of their
arrest was officially recorded. They were later transferred to the Baguio City Jail as detention prisoners.
The crystalline granules were forwarded to the INP Crime Laboratory in Camp Crame, Quezon City, for
examination. The Forensic Chemist in charge of the examination subjected the granules to four (4) different
tests, namely, the color test, the melting point test, the thin layer chromatography test, and the spectro-infra
red test. All the tests showed the presence of metamphetamine hydrochloride, the scientific name of the
substance popularly called shabu. 4
The investigation conducted by the City Prosecutor of Baguio City initially included Editha Gagarin.
However, upon the basis of a letter written by appellant Macasling admitting sole responsibility for the acts
charged in the information, Editha was excluded from the information. In that letter, appellant stated that
Editha was completely innocent, and that she had merely come along with appellant, at his invitation, to
Baguio City.
Appellant Macasling made the following assignment of errors in his Brief:

90
1. The lower court erred in not holding that since the arresting officers were not armed with a search
warrant nor a warrant of arrest, the arrest and consequent confiscation of the package with a wrapper
marked 'Happy Days' contain[ing] 50 grams of shabu (Exh. H and series) are illegal and unlawful, hence
are inadmissible in evidence.
2. The lower court erred in not acquitting the accused on the ground that 'shabu' is not one of those
mentioned in R.A. No. 6425, as amended.
3. The lower court erred in not acquitting the accused on the ground that he was deprived of his
constitutional right to be informed of the nature and the cause of the accusation against him. 5
We shall consider the above alleged errors though not in the order submitted by appellant. cdrep
We consider first appellant's argument that he cannot be convicted of the offense charged in the
information considering that shabu — the term used in the information — is not a dangerous drug, since it
is not one of those enumerated as such in R.A. No. 6425 (The Dangerous Drugs Act).
R.A. No. 6425, as amended, distinguishes between "prohibited drugs" and "regulated drugs." Article I,
Section 2 (e) defines the term "dangerous drugs" as referring either to "prohibited drugs" or to "regulated
drugs" in the following manner:
"(e) 'Dangerous Drugs' — refers to either:
(1) 'Prohibited drug,' which includes opium and its active components and derivatives, such as heroin
and morphine; coca leaf and its derivatives; principally cocaine; alpha and beta eucaine, hallucinogenic
drugs, such as mescaline, lysergic acid diethylamide (LSD) and other substances producing similar effects;
Indian hemp and its derivatives; all preparations made from any of the foregoing; and other drugs and
chemical preparations, whether natural or synthetic, with the physiological effects of a narcotic or a
hallucinogenic drug; or (As amended by B.P. Blg. 179, March 12, 1982.).
(2) 'Regulated drug' which includes self-inducing sedatives, such as secobarbital phenobarbital,
pentobarbital, barbital, amobarbital and any other drug which contains a salt or a derivative of a salt of
barbituric acid; and salt, isomer or salt of an isomer, of amphetamine, such as benzedrine or dexedrine, or
any drug which produces a physiological action similar to amphetamine; and hypnotic drugs, such as
methaqualone, nitrazepam or any other compound producing similar physiological effects (s amended by
P.D. No. 1683, March 14, 1980.)
xxx xxx xxx
(Emphasis supplied)
The statute penalizes the sale, administration, delivery, distribution and transportation of both "prohibited
drugs" and "regulated drugs:"
"Article II.
Prohibited Drugs
xxx xxx xxx
SECTION 4. Sale, Administration, Delivery, Distribution and transportation of Prohibited Drugs. —
The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos
shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty
herein provided shall be imposed. (As amended by P.D. No. 1675, February 17, 1980.)
xxx xxx xxx
Article III
Regulated Drugs
xxx xxx xxx
SECTION 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of
Regulated Drugs. — The penalty of life imprisonment to death and a fine ranging from twenty thousand to
thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense,
deliver, transport or distribute any regulated drug. If the victim of the offense is a minor, or should a
regulated drug involved in any offense under this section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed. (As amended by P.D. No. 1683, March
14, 1980.)
xxx xxx xxx
(Emphasis supplied)

91
The trial court after noting the above-quoted provisions of the statute, went on to say that:
"From the above provisions of law, it is clear that shabu which is the street name of metamphetamine
hydrochloride, is not among those enumerated as prohibited drugs under No. 1(e), Section 2, Article I on
Definition of Terms of Republic Act 6425, as amended.
Obviously, metamphetamine hydrochloride (shabu) is a derivative of amphetamine or a compound thereof,
meaning to say, amphetamine in combination with other drugs or elements which, if one looks closer, is
actually enumerated among the regulated drugs under No. 2(e), Section 2, Article I on Definition of Terms
of Republic Act 6425, as amended.
Note that the law says when it defines regulated drugs as those `which includes self inducing sedatives such
as . . . of amphetamine such as benzedrine or dexedrine, or any other drug which produces a physiological
action similar to amphetamine, and hypnotic drugs, such as methaqualone or any other compound
producing similar physiological effects.' Since shabu is actually metamphetamine hydrochloride, it would
then be obvious that its component parts would be the compound of amphetamine with other elements to
form metamphetamine hydrochloride. In other words, among the elements contained in metamphetamine
hydrochloride is amphetamine, a regulated drug.
xxx xxx xxx 6
(Emphasis supplied)
We agree with the above ruling of the trial court. This Court has in fact taken judicial notice that shabu is a
"street name" for metamphetamine hydrochloride (or "methyl amphetamine hydrochloride"). 7 Considering
the chemical composition of shabu, the Court has declared that shabu is a derivative of a regulated drug, 8
the possession, sale, transportation, etc. of which is subject to the provisions of R.A. No. 6425 as amended.
It remains only to point out that, in the case at bar, the laboratory examination conducted on the crystalline
granules recovered from appellant in fact yielded the compound metamphetamine hydrochloride. The use
in the criminal information of the casual or vulgar term shabu rather than the scientific term
metamphetamine hydrochloride, does not affect the legal responsibility of appellant under the relevant
provisions of R.A. No. 6425 as amended.
It is true, as pointed out by the trial court, that the preambular portion of the criminal information in this
case referred to violation of "Section 21 (b) in relation to Section 4, Article II of R.A. No. 6425 as amended
by Batas Pambansa Blg. 179." Section 21 (b) of the statute reads as follows:
"SECTION 21. Attempt and Conspiracy. — The same penalty prescribed by this Act for the commission
of the offense shall be imposed in case of any attempt or conspiracy to commit the same in the following
cases:
xxx xxx xxx
(b) Sale, administration, delivery, distribution and transportation of dangerous drugs;
xxx xxx xxx
(Emphasis supplied)
Section 4, Article II of the statute deals with "sale, administration, distribution and transportation of
prohibited drugs." Upon the other hand, Section 15 of the statute is concerned with the "sale,
administration, dispensation, delivery, transportation and distribution of regulated drugs." It will be recalled
that the term "dangerous drugs" as used in the statute covers both "prohibited drugs" and "regulated drugs."
Thus, again as pointed out by the trial court, the opening clause of the criminal information should, more
precisely, have referred to Section 15 which deals with "regulated drugs" rather than to Section 4 which
refers to "prohibited drugs." This imprecision in the specification of the appropriate section of R.A. No.
6425 as amended has, however, no consequences in the case at bar. For it is the character of the acts
charged in the criminal information and proven at the trial that is important, rather than the correctness of
the designation of the section and article of the statute violated. It should also not escape notice that the
penalty provided in Section 4: "life imprisonment to death and a fine ranging from P20,000.00 to
P30,000.00," is exactly the same penalty imposed in Section 15 of the statute.
In much the same way, appellant's contention that he had been deprived of his right to be informed of the
nature and cause of the accusation against him, is bereft of merit. The acts with which he was charged are
quite plainly set out in the operative portion of the criminal information: that appellant "did — willfully,
unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport 50 grams of shabu,
knowing fully well that said shabu [is] a prohibited drug . . .". We agree with the trial court that the use of
the term "prohibited drug" was merely a conclusion of law, something which is for the Court to determine;

92
in the circumstances of this case, the inaccurate use of the term "prohibited drug" was also merely a falsa
descriptio. The trial court said: prLL
"The Court stressed this point as in the body of the Information what is alleged as the offense committed is
that the accused unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport 50 grams
of shabu knowing fully well that said shabu is a prohibited drug in violation of the law.
It can readily be seen that the subject matter of the offense, as recited in the body of the Information, is the
transport or sale or delivery of the 50 grams of shabu. This is the allegation of fact in respect to the acts
constituting the offense. This is the offense that would need to be proved. However, the allegation that
shabu is a prohibited drug is a conclusion of law. Apparently, the prosecutor who filed the Information
considered shabu a prohibited drug. Thus, the prosecutor designated the offense as a violation of Section 21
(b) in relation to Section 4, Article II of Republic Act No. 6425, as amended. The Court pointed this out as
should shabu, which really is the street name of metamphetamine hydrochloride be, in fact, a regulated
drug, then the designation of the offense should have been Violation of Section 21(b), Article IV in relation
to Section 15, Article III of Republic Act 6425, as amended. But note, despite the mistaken designation of
the offense there would not be a change in the offense charged for as recited in the body of the Information,
what is charged is still the sale, transport or delivery of 50 grams of shabu. That is the one important. Only
the designation of the offense was a mistake from regulated drug to prohibited drug which is a conclusion
of law.
This would not violate the constitutional right of the accused to be informed of the nature and cause of the
accusation against him. As in fact, the accused is still informed of the offense charged, that is, the unlawful
transport, sale or delivery of 50 grams of shabu.
xxx xxx xxx 9
(Emphasis partly in the original and partly supplied)
Appellant's next contention is that because he was no lawfully arrested, the package with a "Happy Days"
wrapper containing 50 grams of shabu, taken from him was inadmissible in evidence. Appellant's claim that
he was unlawfully arrested is anchored on the fact that the arresting officers had neither warrant of arrest
nor a search warrant.
The basic difficulty with appellant's contention is that it totally disregards the antecedents of the arrest of
appellant inside Room No. 77 of the Hyatt Terraces Hotel. It will be recalled that the arresting officers had
been informed by the Chief of the Narcom Regional Office that a transaction had been agreed upon by
appellant in Las Piñas, Metro Manila, involving delivery of shabu, which delivery was, however, to take
place in Room No. 77 at the Hyatt Terraces Hotel in Baguio City. Only appellant with Editha Gagarin and
the undercover Narcom agent showed up at Room No. 77 at the Hyatt Terraces Hotel and the Narcom
undercover agent had signalled that appellant had with him the shabu. The reception prepared by the
arresting officers for appellant inside Room No. 77 was in fact an entrapment operation. The sale of the
shabu (understood as the meeting of the minds of seller and buyer) did not, of course, take place in the
presence of the arresting officers. The delivery or attempted delivery of the subject matter did, however,
take place in their presence. The trial court explained:
"The situation at hand is no different from a buy bust operation and is in fact part of a buy bust operation. It
must be stressed that the sale was transacted and closed in Las Piñas, Metro Manila by a Chinese
businessman but the delivery was directed to be made in Room 77, Hyatt Terraces, Baguio. And instead of
the Chinese businessman being inside Room 77 to receive the delivery, the Narcom elements took his place
to entrap the party that will deliver.
Normally, the buy bust operation may take the form of both the negotiation for the sale and delivery being
made in the same place between the seller and the poseur buyer. And when the sale is agreed upon, on the
same occasion the drug is delivered upon the payment being given. And it is at this juncture that the police
or the Narcom elements close in to arrest the offender in the act of selling and delivering. This is the classic
case of a `buy-bust' operation, to bust drug pushing.
But surely, there are variations of a `but-bust' operation, where the sale is agreed upon in one place like on
the street and then the delivery is to be made in another place as when the buyer and the seller proceed to
the house where the drug is stored for the delivery. And upon the delivery of the drug by the seller to the
buyer, the police elements will arrest the seller in the act of delivering.
And in the case at bar, the situation is but an extension of the second variation above illustrated where the
sale is agreed upon in one place but the delivery is to be made in another place. As here the sale was agreed
upon in Las Piñas but the delivery was to be made in a far away place, in Hyatt Terraces, Baguio City.

93
Surely, the above is still part and parcel of a buy bust operation although as we said it is more a `bust the
delivery' operation.
xxx xxx xxx
The fact that the Narcom got to know beforehand the delivery to be made thru their intelligence sources
must be given credence by the Court. Like any other organization fighting the crime on drugs, the Narcom
must have intelligence sources or it cannot perform its functions well and fulfill its mission. prcd
Thus, to wait for the delivery, the Narcom elements deployed themselves inside Room 77 in place of the
Chinese businessman to entrap the party who will appear to deliver the shabu which they will know would
be in his possession thru a pre-arranged signal of their undercover agent. Whosoever comes and appears in
Room 77 would be it. All other persons are unexpected (sic) to come to Room 77 and have no business
appearing there except to deliver the shabu unless explained. And ultimately their waiting paid off as
accused Hilario Macasling, Jr. appeared in Room 77 to deliver the shabu and from whom it was taken by
the Narcom. The lack of warrant of arrest is not fatal as this would be covered by the situation provided for
warrantless arrests under Section 5, Rule 113 of the Rules of Court where an offender is arrested while
actually committing an offense or attempting to commit the offense in the presence of a peace officer.
xxx xxx xxx
The Court must stress that the situation in the case at bar is very different from a situation where the law
enforcing agents or elements will simply accost people at random on the road, street, boat, plane or bus
without any pre-arranged transaction and without warrant of arrest or search warrant and by chance find
drugs in the possession of a passerby. This latter situation is clearly not permissible and would be in
violation of the constitutional rights of a person against unreasonable searches and seizures. This would be
a fishing expedition. You search first, and if you find anything unlawful you arrest.
But here it is not at random. There was a previous unlawful transaction. There is a designated place for
delivery, Room 77 and a specified time frame, that very day of August 19, 1988 or thereabouts, and limited
to a particular person, in the sense that whoever would appear thereat would be it. Those who don't knock
at Room 77 and don't go inside Room 77 will not certainly be arrested. But those who will there at that time
and in that place will surely be arrested because of the advance information, thru the intelligence sources,
on the delivery and the prior transaction made. This makes a lot of difference.
xxx xxx xxx
But in the case at bar, accused Hilario Macasling, Jr., at the time of his arrest, was actually in the act of
committing a crime or attempting to commit a crime in the presence of the peace officers as he appeared
there in Room 77 to deliver 50 grams of shabu, a regulated drug, which was previously bought but directed
to be delivered thereat.
The accused had no reason to be at Room 77, knocking therein, and going inside, if he was not the party to
deliver the shabu, and indeed he was. And the Narcom elements have the right to pounce on him
immediately lest he gets away, or is tipped off, or can sense something is amiss or wrong. Unless, of
course, accused can explain then and there that he knocked on the door and went inside Room 77 by
mistake like being an innocent hotel boy, room boy or hotel employee who is going inside the room to fix
the room. Or that accused is a hotel guest who committed a mistake as to his correct room. But this is not
the situation at hand as no such explanation was immediately made by the accused. On the contrary,
accused went inside the room when let in indicating beyond reasonable doubt that he was the party to
deliver, and indeed he was, as the shabu was taken from his person after the pre-arranged signal was given
by the undercover agent. These circumstances speak for themselves. Res Ipsa Loquitor. The accused was
caught in flagrante delicto.
xxx xxx xxx " 10
(Emphasis supplied)
We consider that under the total circumstances of this case, the warrantless arrest of appellant inside Room
No. 77 was merely the culmination of an entrapment operation and that the taking of shabu from appellant
was either done immediately before, or was an incident of, a lawful arrest. 11
As his principal factual defense, appellant denied knowledge of the fact that the package bearing the
"Happy Days" wrapper contained a quantity of a dangerous drug, claiming that he had merely been
instructed by his employer, Mr. Ben Diqueros, to bring the package to Baguio City as a gift for Mrs.
Diqueros. Appellant sought to explain his trip to Baguio by insisting that he had been asked by Mr.
Diqueros to drive the latter's Toyota Celica car to the Diqueros residence in Tranco Ville, Baguio City, as
Mrs. Diqueros was planning to sell the car. Macasling had in turn invited Editha Gagarin, together with the

94
latter's children and mother, to join him in Baguio City. They reached Baguio City later in the evening of
19 August 1988 and stayed temporarily at the Castilla Monte. Appellant contended that he had left the
Castilla Monte to see Mrs. Diqueros at their residence in Tranco Ville but was there informed by one Mario
and a domestic helper that Mrs. Diqueros was at the Hyatt Terraces Hotel. Appellant then had Mario
accompany him to the hotel where they found Mrs. Diqueros playing in the casino. Appellant, however,
decided not to bother Mrs. Diqueros and so returned to the Castilla Monte.
While at the Castilla Monte, appellant continued, he received a telephone call from Mario informing him
that Mrs. Diqueros had finished playing at the casino. Although it was then midnight, appellant together
with Editha Gagarin proceeded to the Hyatt Terraces Hotel. There they were met at the hotel lobby by
Mario who informed them that Mr. Diqueros was at Room No. 77. Appellant claimed that he was, in Room
No. 77, searched at gunpoint and that the package he was carrying for Mrs. Diqueros was seized. Unknown
to him, he insisted, the gift package contained "shabu." 12
The trial court was not persuaded by appellant's elaborate disclaimer of knowledge about the shabu, finding
such disclaimer as contrived and improbable and not worthy of credence. 13 The rule, of course, is that
testimony to be believed must not only originate from a credible witness, but must also itself be credible.
14 We see no reason, and we have been pointed to none, why the Court should overturn the appraisal of the
trial court of the credibility (or rather lack of credibility) of the long story offered by appellant. We find no
basis for departing from the basic rule that the appraisal by the trial court of the credibility of witnesses
who appeared before it is entitled to great respect from appellate courts who do not deal with live witnesses
but only with the cold pages of a written record.
WHEREFORE, the Decision of the Regional Trial Court Baguio City, in Criminal Case No. 5936-R is
hereby AFFIRMED in toto. No pronouncement as to costs.
SO ORDERED.
Bidin, Davide, Jr., Romero and Melo, JJ ., concur.

XI(People v. Tongson, G.R. No. 91261, February 18, 1991)


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REY FRANCIS YAP TONGSON @ REY,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
DECISION
GRIÑO-AQUINO, J p:
Appeal from the decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25 in Criminal
Case No. 1178 finding the accused, Rey Francis Yap Tongson, alias Rey, guilty of the crime of rape
committed against 13-year-old Glenda Laplana. prLL
As found by the trial court, the facts of the case are as follows:
". . . In the evening of May 21, 1987, while the offended party was on her way home from the house of
Emerenciana Aberasturi at Malitbog, Southern Leyte, she was held by the accused and forcibly dragged
towards the sea. She shouted for help but to no avail.
"Upon reaching the seashore, the accused held her hair and immersed her in the sea. The place of
immersion was knee-deep. Her whole body wet, she was dragged ashore by him. He then pushed her and
she fell down. While she was lying down, he gagged her with his T-shirt and then boxed her thrice on her
abdomen.
"Thereafter, the accused removed her panty, inserted his fingers into her vagina, and after pulling them out,
had sexual intercourse with her. She tenaciously resisted the lustful designs of the accused by moving her
body, pushing him and even boxing him while he was sexually abusing her. Her efforts at resistance,
however, proved futile as he was much stronger than she." (p. 19, Rollo.)
What happened afterwards are as follows:
". . . After he had performed the act, he warned her not to divulge it or else he would kill her. The accused
then brought her towards the house of Tiu Tiam Su where he was then working.
"When they reached near the house of Tiu Tiam Su alias Onjo, the accused told her to wait because he
would get a pump boat. She did not, however, wait for him. As soon as he was at a distance from the house
of Tiu Tiam Su, she ran towards the house of her aunt, Estela.

95
"Upon arriving at Estela's house she called for the people upstairs. Estela responded to her call. They met at
the stairway. Estela asked her why she was wet and crying. She told Estela she (victim) was raped by the
laborer of Tiu Tiam Su. She then went up the house after telling Estela about the incident.
"Later that evening she was brought to the office of the Chief of Police, Guerillito Lura. There were
policemen and civilians (among them being the accused) in that office. When the Chief of Police asked her
who among those men raped her, she pointed to the accused. After identifying the accused she went to the
hospital for examination.
"Corroborating certain parts of the victim's testimony, Estela Aberasturi declared that at about 9:00 o'clock
in the evening of May 21, 1987, Arleta Espera (a maid of Emerenciana Aberasturi, Estela's mother-in-law)
went to her house in the poblacion of Malitbog. Arleta asked her where Glenda Laplana was. She told
Arleta that Glenda was at Emerenciana's house. Arleta said Glenda went ahead of her as she (Glenda) felt
sleepy.
"When she (Estela) went downstairs, she felt surprised to see Glenda crying and her whole body wet. She
had no more slippers. She asked her why she was crying. Glenda answered she was raped by the laborer of
Tiu Tiam Su. She further noticed that Glenda's hair was sandy and she had bruises on her arms and feet.
After questioning Glenda, she told her parents-in-law and also her brother-in-law about the incident. And,
they called for a policeman.
Guerillito Lura, the Station Commander of the Malitbog Police, testified that in the evening of May 21,
1987 the guard of the Police Station sent for him, informing him there was a rape incident. He immediately
went to the police station. He found many people there. He asked the guard what transpired. The guard told
him that Pat. Claro Faelnar and Pfc. Macario Lagatierra were in pursuit of the perpetrator, a laborer of Tiu
Tiam Su.
"He followed the policemen to Tiu Tiam Su's residence. When he arrived there he asked Lando (a son of
Tiu Tiam Su) where Pat. Faelnar and Pfc. Lagatierra were. He was told that they were looking for Rey. The
policemen were then in the bodega of Tiu Tiam Su searching for Rey. They could not find Rey at that
instant. Pat. Lagatierra followed Rey as he evaded the police and managed to jump out of the bodega.
"He summoned other policemen and some people around to help apprehend the culprit. Among them were
Fernando Aberasturi, his brother (Rico), and a younger brother, Fernando apprehended Rey at the wharf
about 50 meters away from the bodega of Tiu Tiam Su. Rey was brought to him immediately.
"When the victim (whom he had summoned) arrived, he asked her to pinpoint the person who raped her.
She immediately pointed to the accused, Rey Tongson, from among some twenty persons present. The
accused just bowed his head when the victim identified him. Before the victim (Glenda Laplana) arrived at
his office, he asked the accused if it was true that he raped her. He admitted without hesitation.
"Dr. Leonardo S. Gimeno told the court he examined the victim, Glenda Laplana, at about 11:00 o'clock in
the evening of May 21, 1987. He issued a medico-legal certificate containing his findings (Exh. A). He
found all those multiple contusions and abrasions indicated in Item No. 1 of Exh. 'A'. These injuries could
have been caused by fistic blows or by some pressure on the victim after she fell down.
"With reference to Item No. 2, he told the victim to undress because he wanted to examine her vagina.
Upon taking off her panty, he saw blood on the front portion of her panty. There was blood also on the
vaginal orifice. The blood came from the first-degree laceration. One cause of this laceration is the forced
entry into the vagina of a man's penis.
"As he examined the victim further, he found traces of sand and grass in the vaginal canal. The injuries
sustained by the victim indicate signs of struggle by her during the incident. His examination, however,
proved negative for spermatozoas." (pp. 16-18, Rollo.)
The records do not reveal when the victim filed a complaint, but the information based on the complaint
was filed with the Regional Trial Court on June 30, 1987.
After the trial, the lower court found Tongson guilty beyond reasonable doubt of the crime of rape. It
sentenced him to suffer the penalty of reclusion perpetua and ordered him to indemnify the offended party
in the amount of thirty thousand pesos (P30,000.00). Petitioner-appellant was given credit for his
preventive imprisonment.
In this appeal, the accused-appellant alleges that the trial court erred: (1) in giving much weight and credit
to the evidence of the prosecution without considering that of the defense, and (2) in finding him guilty
beyond reasonable doubt of the crime of rape.
Contrary to appellant Tongson's claim that the offended party voluntarily submitted to his sexual advances,
the trial court found that the victim Laplana resisted vigorously so that he had to drag her towards the

96
seashore. She testified that she shouted for help many times but nobody was on the road at the time, so no
one came to help her. She described how she struggled against the appellant, causing him to box her three
(3) times in the abdomen, and her futile efforts to attract the attention of the persons attending a public
dance some 120 to 130 meters from the seashore where she was sexually assaulted. LibLex
The alleged "public setting" of the rape is not an indication of consent. For, as pointed out by the Solicitor
General, rape may be committed at a place where people congregate such as parks (People vs. Vidal, 127
SCRA 171), by the roadside (People vs. Aragona, 138 SCRA 569), or on a passageway at noontime
(People vs. Lopez, 141 SCRA 385). In the case of People vs. Barcelona, G.R. No. 82589, October 31,
1990, we took judicial notice of the fact that a man overcome by perversity and beastly passion chooses
neither time, place, occasion, nor victim.
That no spermatozoa was present in the specimen that was taken from the vagina of the victim did not
disprove the rape. Presence or absence of spermatozoa is immaterial since it is penetration, however slight,
and not ejaculation that constitutes rape (People vs. Paringit, G.R. No. 83947, September 13, 1990; People
vs. Barro, Jr., G.R. No. 86385, August 2, 1990).
Appellant's contention that he did not have sexual intercourse with the complainant but merely inserted his
right middle finger into her vagina was correctly found by the trial court to be incredible:
"The claim of the accused that he merely inserted his middle right finger into the victim's vagina does not
appear credible. He admitted though that he did it without her permission. His demonstration of how it was
done defies our imagination. Here is the reactment (sic) of the fantastic scene;
"Sitting side by side with her, he placed his right thigh over the victim's left thigh, holding her right hand
with his left, and at the same time inserting his middle right finger into her vagina, while the victim was
holding his right lap with her left hand. The situation described by him appears awkward and improbable.
"Moreover, it does not jibe with his pre-demonstration testimony that he was embracing the victim with his
left hand, face to face with her, when he inserted his right middle finger into her vagina. Furthermore, by
demonstrating that the victim held his right lap with her left hand while he was inserting his finger, he
wanted to imply that she voluntarily consented to such insertion. And yet according to him, she got mad. Is
this not absurd?" (p. 45, Rollo.)
That the complainant was raped was established by the medical findings, to wit: "blood in the vaginal
orifice, first degree laceration of one inch or more at 6:00 o'clock position of the vaginal orifice" (p. 61,
Rollo). Dr. Leonardo Gimeno, the physician who examined the victim after the incident, declared that the
injury to her vaginal orifice was "caused by the forced entry into the vagina of a man's penis" (p. 62, Rollo).
The doctor's other findings support complainant's testimony that she was raped on the seashore. Sand and
grass were found in her vagina. The multiple abrasions and contusions on the victim's lips, right face, lower
back including both buttocks, left elbow, left thigh, both knees, legs and feet, are mute testimonies giving
credence to her claim that the appellant dragged her on the shore and forcibly had sexual intercourse with
her.
When a woman testifies that she was raped, she says all that is necessary to show its commission, for no
young and decent Filipina — in this case only thirteen (13) years old — would publicly admit having been
ravished unless it is the truth, for her natural instinct is to protect her honor (People vs. Manago, G.R. No.
90669, November 21, 1990; People vs. Barcelona, G.R. No. 82589, October 31, 1990). The testimony of a
rape victim is credible where no motive to testify against the accused is shown except the desire to
vindicate her honor (People vs. Lutanez, G.R. No. 78854, December 21, 1990; People vs. Fabro, G.R. No.
79673, November 15, 1990).
In any case, whether or not carnal knowledge is voluntary and free is a question of credibility (People vs.
Mercado, G.R. No. 72726, October 15, 1990). Since the witnesses to rape are often only the victim and the
offender, the trial judge's evaluation of the witnesses' credibility deserves utmost respect in the absence of
arbitrariness, considering the trial judge's advantage of observing the witnesses' demeanor in court (People
vs. Felipe, G.R. No. 90390, October 31, 1990. We find no reason to reverse the trial court's conviction of
Tongson for rape.
WHEREFORE, the appealed decision of the Regional Trial Court in Criminal Case No. 1178 is affirmed in
all respects except the award of damages to the victim Glenda Laplana which is increased from P30,000 to
P40,000 in accordance with the latest policy of the Court.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

97
XII(People v, Barcelona, G.R. No. 82589, October 31, 1990)
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GIDEON BARCELONA y DEQUITO,
defendant-appellant.
The Solicitor General for plaintiff-appellee.
Jose P. Villanueva counsel de oficio for accused-appellant.
DECISION
PADILLA, J p:
In Criminal Case No. 6026 of the Regional Trial Court of Palawan, Gideon Barcelona y Dequito was
charged with the crime of Rape committed as follows: prcd
"That on or about the 7th day of November, 1985 at Barangay IV, Poblacion, Municipality of Roxas,
Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the said accused with
lewd design, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and
feloniously have carnal knowledge, with one Sylina Rodriguez against her will and consent to her damage
and prejudice." 1
When arraigned, the accused, assisted by counsel, pleaded "Not Guilty' to the commission of the crime. 2
After trial, however, he was found guilty, as charged, and sentenced to suffer the penalty of reclusion
perpetua, to pay the offended party the amount of P30,000.00, and to pay the costs. 3
From this judgment, the accused appealed to this Court.
The incriminatory facts of the case, according to the People's counsel, are as follows:
"Around 6:30 p.m. of November 7, 1985, Sylina Rodriguez, a sixteen-year old high school student of the
Roxas National Comprehensive High School in Roxas, Palawan, was walking on her way home (July 2,
1986 tsn, p. 7). Upon reaching a point in the diversion road near the Medicare Hospital of the new townsite,
she looked back and saw a male person jogging (Ibid., p. 8). She continued walking (Ibid.). The jogger
overtook her and, upon doing so, suddenly turned back and took hold of her hands and started pulling her
towards the bushes (Ibid.). She resisted and hit him with fist blows on his chest (Ibid.). As he was pulling
her, he threatened to kill her by making a motion to pull something from his back (Ibid. p. 9). He was
finally able to pull her to the bushes (Ibid.).
"In the bushes, he forcibly undressed her, removing both her skirt and panty (Ibid., p. 10). He also
undressed and forced her to lay down on her back (Ibid.). He then lay on top of her and began to kiss her
cheeks and lips (Ibid., pp. 9-10). At this point, she was in tears (Ibid., p. 11). Then he inserted his organ
into her private part (Ibid., p. 10). She immediately felt a stab of pain (Ibid., p. 11). When he was finished,
he allowed her to dress up but warned her not to report the incident to the police authorities (Ibid. p. 12).
The victim then went home (Ibid., p. 13).
"The following day, November 8, 1985, accompanied by her uncle and auntie, she reported the matter to
the police authorities (Ibid., p. 14). Thereafter, she was brought to the Medicare Community Hospital
where she was examined (Ibid.).
"Upon information from Hernando Cayaon that he saw accused-appellant Gideon Barcelona jogging near
the diversion road in the late afternoon of November 7, 1985, the police authorities invited the latter on
November 9, 1985 for questioning (November 18, 1986 tsn, p. 3). Upon confrontation, the victim positively
identified accused-appellant as the person who raped her (July 2, 1986, tsn, p. 14). Thereafter, accused-
appellant was placed under arrest." 4
The accused Gideon Barcelona, however, denied that he committed the crime imputed to him and
interposed the defense of alibi. The trial court summarized the evidence for the defense as follows: LLphil
"The accused in his defense testified that he is presently 19 years old having been born on November 7,
1968. He was employed since October 1985 in the fishing outfit of Paning Paner and has their base at
Cabugan Island, Roxas, Palawan. Normally, they go to the Poblacion of Roxas every Saturday to haul
water and supplies. Sometime in the afternoon of November 9, 1985, he was fetched by P/Sgt. Eriberto
Castillo of Roxas Police Station and taken to the Municipal Building. In the said place he saw Melchor
Cayaon as well as his brothers and sisters. He alleged since complainant saw him, she did not positively
identified (sic) him but entertained doubts as the person who raped her.
"Supporting in part his testimony was the statement of witness Roger Mania, a detainee at the municipal
jail of Roxas, Palawan at the time who alleged that he saw suspect Melchor Cayaon in the early morning of
8 November, 1985. He stated that at about 8:00 A.M. of the same day when victim saw Melchor Cayaon,
the former identified the latter as the one who raped her. He further heard the complainant describe that the

98
person who raped her had curly hair. Suspect Melchor Cayaon had curly hair while accused Gideon
Barcelona had no curly hair.
"In addition to this, witness Jose Lagrada testified that he was the companion of the accused at the fishing
outfit of Paning Paner. In brief, said witness testified that he knew accused Gideon Barcelona. Both of them
were employed in said fishing outfit about the latter part of October, 1985 and continued uninterruptedly
until his arrest on November 9, 1985. He stated that their schedule of fishing is from 7:00 o'clock a.m. up to
1:00 o'clock p.m. He claimed that from the last week of October 1985 up to his arrest on November 9,
1985, accused Barcelona never went to the Poblacion of Roxas, Palawan and continuously stayed at
Cabugan Island. Despite prior knowledge that the latter was arrested for rape, he never informed the Police
Force of Roxas, Palawan or any person for that matter about the stay of Barcelona in their place of work
nor did he visited (sic) accused in jail despite his close friendship with him. (Test. of Jose Lagrada, tsn: pp.
1-11, December 12, 1986)" 5
In this appeal, the accused-appellant claims that the trial court erred: (1) in giving weight to the testimony
of the complainant which is allegedly materially inconsistent, contradictory and incredible, and (2) in
convicting the accused-appellant when there is no evidence on record that his guilt has been proved beyond
reasonable doubt. cdphil
We find no merit in the appeal. There is no doubt that the complainant had been raped on 7 November
1985, in the manner testified to by her and affirmed by the trial court. When a woman testifies that she has
been raped, she says in effect all that is necessary to show that rape was committed, for no young and
decent Filipino woman would publicly admit that she has been criminally ravished unless that is the truth,
for her natural instinct is to protect her honor. 6
Besides, complainant's testimony is confirmed by the surrounding physical facts. Medical examination of
her genitalia in the morning following the attack showed that (1) there was a slight mucosal inflammation
of the labia majora; (2) hymenal laceration at 2:00 o'clock, 5:00 o'clock, and 9:00 o'clock; and (3) whitish
mucosal vaginal discharge, scanty in amount noted. 7 Dr. Feliciano Velasco, medical officer of the Roxas
Palawan Medicare Community Hospital, who examined the complainant, opined that this was the first time
she had sexual intercourse because the lacerations on the hymen were fresh. 8
Moreover, the outrage was immediately reported to the police authorities after its commission, removing
any doubt that the complainant may have concocted her charge against the appellant.
The appellant contends, however, that the crime of Rape was not committed because no force or
intimidation was employed, i.e., no external injuries or bruises or scratches were found on the
complainant's body, despite her testimony that she was dragged to the bushes, and that the complainant did
not offer tenacious and spirited resistance to the assault on her.
The absence of physical injuries on the complainant's body does not, of itself, negate the complainant's
testimony that she was raped; nor does it make the complainant a willing partner in the sex act. The victim
need not kick, bite, hit, slap or scratch with her fingernails the offender to successfully claim that she had
been raped. It is enough that coition was undertaken against her will. It is sufficient that the carnal
knowledge was done after the woman yielded because of an authentic apprehension of a real fear of
immediate death or great bodily harm. In this case, there is evidence that the offended girl yielded to the
carnal desires of the appellant for fear that he might kill her since, according to complainant, the appellant
had threatened her with death and made menacing gestures as if to draw a weapon. It is this same fear that
must have prevented her from making an outcry or reporting the outrage to her uncle. 9
As the Court had said in a case, 10 "the force or violence required in rape cases is relative. When applied it
need not be too overpowering or irresistible. What is essential is that the force used is sufficient to
consummate the purpose which the offender had in mind, or to bring about the desired result. In using
force, it is not even necessary that the offender is armed with a weapon, as the use of a weapon serves only
to increase the penalty. Intimidation can be addressed to the mind as well. In sum, the absence of external
signs or physical injuries does not negate the commission of the crime of rape." prcd
As to the identity of the perpetrator of the dastardly act, the complainant declared, and the trial court agreed
with her, that the appellant committed the crime. The complainant positively identified the accused as the
person who raped her 11 and, as the trial court said, she had no doubt nor second thought about her
identification of the accused-appellant. Besides, it would appear that the complainant had no ill motive to
testify falsely against the appellant. In fact, the appellant was a complete stranger to her and she did not
know his name then. But, when they came face to face, the second time, she readily pointed to the appellant

99
as the person who ravished her. 12 This Court has consistently held that the testimony of a rape victim as to
who abused her is credible where she has no motive to testify falsely against the accused. 13
The appellant argues that the testimony of the complainant should not be given weight and credence
because it is allegedly inconsistent, contradictory and incredible in that: (1) on direct examination, she
declared that in trying to repel the advances of the appellant, she bit him on the left forearm, whereas, on
cross examination, she denied having stated that she bit the appellant; (2) on direct examination, the
complainant declared that she did not report the incident to her uncle because she was afraid but, on cross
examination, she stated that she reported the incident to her uncle who, in turn, reported it to the police; and
(3) on direct examination, the complainant testified that the sexual act took about twenty (20) minutes and
that she felt pain, but that she felt no ejaculation, while on cross examination, she stated that there was
ejaculation inside her vagina.
These alleged contradictory statements are not fatal as they refer to relatively minor details, and they are to
be expected from uncoached witnesses. They do not affect, nor can they prevail over the positive
identification of the appellant as the rapist. As repeatedly held by the Court, discrepancies and
inconsistencies in the testimony of prosecution witnesses which refer to minor details do not impair the
probative value of their testimony. 14
The insinuation of the appellant that he could not have raped the complainant on 7 November 1985 because
it was his birthday is, definitely, without basis for a man overcome by perversity and beastly passion
chooses neither time, place, occasion nor victim. prcd
There being no error committed in the judgment appealed from, the same should be affirmed.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, with costs.
SO ORDERED.
Melencio-Herrera , Paras, Sarmiento and Regalado, JJ., concur.

Rule 130
Section 23
XIII(Goni v. Court of Appeals, L-77434. September 23, 1986, 144 SCRA 222)
GENARO GOÑI, RUFINA P. VDA. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P. VILLANUEVA,
MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P.
VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P. VILLANUEVA DE
ARRIETA, petitioners-appellants, vs. THE COURT OF APPEALS and GASPAR VICENTE, respondents-
appellees.
Ambrosio Padilla Law Office for petitioners-appellants.
San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DISQUALIFICATION OF WITNESSES BY REASON OF INTEREST
OR RELATIONSHIP; RATIONALE. — The object and purpose of Rule 130, Sec. 20 par. (a) is to guard
against the temptation to give false testimony in regard to the transaction in question on the part of
the surviving party and further to put the two parties to a suit upon terms of equality in regard to the
opportunity of giving testimony. It is designed to close the lips of the party plaintiff when death has
closed the lips of the party defendant, in order to remove from the surviving party the temptation to
falsehood and the possibility of fictitious claims against the deceased.
2. ID.; ID.; ID.; APPLICABLE IN THE CASE AT BAR. — The case at bar, although instituted
against the heirs of Praxedes Villanueva after the estate of the latter had been distributed to them,
remains within the ambit of the protection. The reason is that the defendants-heirs are properly the
"representatives" of the deceased, not only because they succeeded to the decedent's right by
descent or operation of law, but more importantly because they are so placed in litigation that they
are called on to defend which they have obtained from the deceased and make the defense which the
deceased might have made if living, or to establish a claim which deceased might have been
interested to establish, if living.
3. ID.; ID.; EXCEPTION; WAIVER, HOW MADE; CASE AT BAR. — The protection under the Rules,
was effectively waived when counsel for petitioners cross-examined private respondent Vicente. "A
waiver occurs when plaintiff's deposition is taken by the representatives of the estate or when
counsel for the representative cross-examined the plaintiff as to matters occurring during deceased's

100
lifetime." It must further be observed that petitioners presented a counterclaim against private
respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in
the action for recovery of property and as defendant in the counterclaim for accounting and
surrender of fields nos. 13 and 14. Evidently, as defendant in the counterclaim, he was not
disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva,
said action not having been brought against, but by the estate of representatives of the
estate/deceased person.
4. ID.; ID.; ID.; ID.; LIMITATIONS. — Under the great majority of statutes, the adverse party is
competent to testify to transactions or communications with the deceased or incompetent person
which were made with an agent of such person in cases in which the agent is still alive and
competent to testify. But the testimony of the adverse party must be confined to those transactions
or communications which were had with the agent.
5. ID.; ID.; ID.; INEQUALITY SOUGHT TO BE AVOIDED BY THE RULES, INEXISTENT. — The
inequality or injustice sought to be avoided by Section 20 (a) of Rule 130, where one of the parties no
longer has the opportunity to either confirm or rebut the testimony of the other because death has
permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that
petitioner Goni could and did not negate the binding effect of the contract/promise to sell. Thus,
while admitting the existence of the said contract/promise to sell, petitioner Goni testified that the
same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the
Hacienda Dulce Nombre de Maria.
6. CIVIL LAW; CONTRACTS; MODE OF EXTINGUISHMENT; NOVATION; DEFINED; REQUISITE.
— Novation takes place when the object or principal condition of an obligation is changed or altered.
In order, however, that an obligation may be extinguished by another which substitutes the same, it
is imperative that it be so declared in unequivocal terms, or that the old and the new obligations be
on every point incompatible with each other. "Novation is never presumed. It must be established
that the old and the new contracts are incompatible in all points, or that the will to novate appear by
express agreement of the parties or in acts of equivalent import."
DECISION
FERNAN, J p:
This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-R
entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goñi, et al., Defendants-Appellants" as well
as from the resolution denying petitioners' motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the
Municipality of Bais, Negros Oriental, were originally owned by the Compañia General de Tabacos de
Filipinas [TABACALERA]. Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest
of petitioners, negotiated with TABACALERA for the purchase of said haciendas. However, as he did
not have sufficient funds to pay the price, Villanueva with the consent of TABACALERA, offered to sell
Hacienda Sarria to one Santiago Villegas, who was later substituted by Joaquin Villegas. Allegedly
because TABACALERA did not agree to the transaction between Villanueva and Villegas, without a
guaranty private respondent Gaspar Vicente stood as guarantor for Villegas in favor of TABACALERA.
The guarantee was embodied in a document denominated as "Escritura de Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva and Villegas still fell
short of the purchase price of the three haciendas, or in consideration of the guaranty undertaken by
private respondent Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and
13 of Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement was reduced to
writing and signed by petitioner Genaro Goñi as attorney-in-fact of Villanueva, thus: prLL
"En consideracion a la garantia que Don Gaspar Vicente asume con la Cia. Gral. de Tabacos de
Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin Villegas el
que Suscribe Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar Vicente los campos
nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra projectada
de la Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por valor de
P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T. Villanueva.
"Bais, Central, Octubre 24, 1949.

101
"Fdo. Praxedes T. Villanueva.
Por: "Fdo. Genaro Goñi
Apoderado" 2
Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount of
P13,807.00 as payment for the balance of the purchase price. However, as only the amount of
P12,460.24 was actually needed to complete the purchase price, only the latter amount was debited
from private respondent's account. The difference was supposedly paid by private respondent to
Villanueva, but as no receipt evidencing such payment was presented in court, this fact was disputed
by petitioners.
It is alleged by petitioners that subsequent to the execution of the contract/promise to sell,
Villanueva was able to raise funds by selling a property in Ayungon, Negros Oriental. He thus went to
private respondent Vicente for the purpose of rescinding the contract/promise to sell. However, as
the amount of P12,460.24 had already been debited from private respondent's account, it was agreed
that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would merely be leased to private
respondent Vicente for a period of five (5) years starting with crop-year 1950-51 at an annual rental
of 15% of the gross income, said rent to be deducted from the money advanced by private
respondent and any balance owing to Villanueva would be delivered by Vicente together with the lots
at the end of the stipulated period of lease. cdrep
On December 10, 1949, TABACALERA executed a formal deed of sale covering the three haciendas in
favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria were thereafter
registered in the name of Villanueva under TCT No. T-4780 of the Register of Deeds of Negros
Oriental. The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance Corporation
(RFC), later transferred to the Philippine National Bank on December 16, 1955, for a total
indebtedness of P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950
milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitiva" in favor of Joaquin
Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square meters,
more or less, (Hacienda Sarria). A supplemental instrument was later executed by Villanueva in favor
of Villegas to include in the sale of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24,
1951 before the then Court of First Instance of Negros Oriental, docketed as Special Case No. 777.
Among the properties included in the inventory submitted to the court were fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria. Field no. 13 with an area of 1 hectare, 44 ares and 95 centares was
listed as Lot no. 723 of the inventory, while fields nos. 3 and 4, with areas of 3 hectares, 75 ares and
60 centares, and 1 hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257 of the
inventory.
On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of
the late Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action
for recovery of property and damages before the then Court of First Instance of Negros Oriental
against petitioner Goñi in his capacity as administrator of the intestate estate of Praxedes Villanueva.
In his complaint docketed as Civil Case No. 2990, private respondent Vicente sought to recover field
no. 3 of the Hacienda Dulce Nombre de Maria, basing his entitlement thereto on the contract/promise
to sell executed by the late Praxedes Villanueva in his favor on October 24, 1949. He likewise prayed
by way of attorney's fees and other costs the sum of P2,000.00 and for such other further relief which
the court may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goñi, as defendant in Civil Case No. 2990, filed an answer with
counterclaim for accounting of the produce of fields nos. 4 and 13, as well as the surrender thereof on
June 20, 1955, the end of the fifth crop-year, plus moral damages in the sum of P30,000.00 and
P3,000.00 as attorney's fees. After an answer to the counter-claim had been filed, private respondent
Vicente amended his complaint on September 1, 1955, to include a prayer for damages representing
the produce of field no. 3 from 1949-50 until delivery thereof to him. An answer with counterclaim to
the amended complaint was duly filed, and on April 25, 1956, private respondent Vicente amended
his complaint anew to include as parties-defendants the heirs of the late Praxedes Villanueva.

102
On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs
of production and produce of the three fields in question. The case thereafter proceeded to trial.
Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente, himself, who over the
objection of therein defendants testified on facts occurring before the death of Praxedes Villanueva,
and Epifanio Equio, a clerk of TABACALERA Agency in the Bais Sugar Central. Defendants presented
Genaro Goñi, who testified on the alleged verbal lease agreement.
On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs to
deliver to Gaspar Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in
favor of Vicente, to pay the latter actual or compensatory damages in the amount of P81,204.48,
representing 15% of the total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and
such other amounts as may be due from said field for the crop years subsequent to crop-year 1958-
59, until the field is delivered to Vicente, and to pay the sum of P2,000.00 as attorney's fees plus
costs. Therein defendant Goñi was relieved of any civil liability for damages, either personally or as
administrator of the estate. 5
Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion
awarding damages on a claim that he was entitled to more, and defendants, from the entire decision.
Cdpr
On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower
court, with the modification that the amount of damages to be paid by defendant-heirs to the plaintiff
should be the total net income from field no. 3 from the crop year 1950-51 until said field is finally
delivered to the plaintiff plus interest thereon at the legal rate per annum. 6
Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated
February 9, 1967. Hence, the present appeal by certiorari whereby petitioners raise the following
questions of law:
"MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING BEFORE THE
DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON HIS
ESTATE, IN VIOLATION OF RULE 123, SEC. 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)?
"MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24, 1949 BE NOVATED INTO A VERBAL
AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE DEATH OCCURRED ON
NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES SUBSTANTIATED BY COMPETENT ORAL
EVIDENCE IN THIS CASE?
"SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE
ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN HIS
ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF P2,000.00 AS
ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH
CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP YEARS 1950-51 TO 1958-59 AND
FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR SUBSEQUENT TO 1958-59 PLUS INTEREST?" 7
We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of
private respondent Vicente's testimony. Under ordinary circumstances, private respondent Vicente
8 would be disqualified by reason of interest from testifying as to any matter of fact occurring before
the death of Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of Rule
130, commonly known as the Survivorship Disqualification Rule or Dead Man Statute, which
provides as follows:
"Section 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 occurring before the
death of such deceased person or before such person became of unsound mind."
The object and purpose of the rule is to guard against the temptation to give false testimony in regard
to the transaction in question on the part of the surviving party and further to put the two parties to
a suit upon terms of equality in regard to the opportunity of giving testimony. 9 It is designed to close
the lips of the party plaintiff when death has closed the lips of the party defendant, in order to

103
remove from the surviving party the temptation to falsehood and the possibility of fictitious claims
against the deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the
latter had been distributed to them, remains within the ambit of the protection, The reason is that the
defendants-heirs are properly the "representatives" of the deceased, not only because they
succeeded to the decedent's right by descent or operation of law, but more importantly because they
are so placed in litigation that they are called on to defend which they have obtained from the
deceased and make the defense which the deceased might have made if living, or to establish a claim
which deceased might have been interested to establish, if living. 11
Such protection, however, was effectively waived when counsel for petitioners cross-examined
private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the
representative of the estate or when counsel for the representative cross-examined the plaintiff as to
matters occurring during deceased's lifetime." 12 It must further be observed that petitioners
presented a counterclaim against private respondent Vicente. When Vicente thus took the witness
stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in
the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death
of Praxedes Villanueva, said action not having been brought against, but by the estate or
representatives of the estate/deceased person. prLL
Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions
or communications with the deceased or incompetent person which were made with an agent of
such person in cases in which the agent is still alive and competent to testify. But the testimony of the
adverse party must be confined to those transactions or communications which were had with the
agent. 13 The contract/promise to sell under consideration was signed by petitioner Goñi as
attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding
the execution of such contract and therefore could either confirm or deny any allegations made by
private respondent Vicente with respect to said contract. The inequality or injustice sought to be
avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to
either confirm or rebut the testimony of the other because death has permanently sealed the
former's lips, does not actually exist in the case at bar, for the reason that petitioner Goñi could and
did not negate the binding effect of the contract/promise to sell. Thus, while admitting the existence
of the said contract/promise to sell, petitioner Goñi testified that the same was subsequently novated
into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation is changed or altered. 14
In order, however, that an obligation may be extinguished by another which substitutes the same, it
is imperative that it be so declared in unequivocal terms, or that the old and the new obligations be
on every point incompatible with each other. 15 "Novation is never presumed. It must be established
that the old and the new contracts are incompatible in all points, or that the will to novate appear by
express agreement of the parties or in acts of equivalent import." 16
The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and
convincingly proven not only by the testimony of petitioner Goñi, but likewise by the acts and
conduct of the parties subsequent to the execution of the contract/promise to sell. Thus, after the
milling season of crop year 1949-50, only fields nos. 4 and 13 were delivered to private respondent
Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva's name and mortgaged
with the RFC. Villanueva likewise executed a deed of sale covering Hacienda Sarria in favor of Joaquin
Villegas. All these were known to private respondent Vicente, yet he did not take any steps toward
asserting and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or causing notice of his
adverse claim to be annotated on the certificate of title of said lots. If it were true that he made
demands on Villanueva for the surrender of field no. 3 as well as the execution of the corresponding
deed of sale, he should have, upon refusal of the latter to do so, immediately or within a reasonable
time thereafter, instituted an action for recovery, or as previously observed, caused his adverse claim
to be annotated on the certificate of title. Considering that field no. 3, containing an area of three (3)
hectares, 75 ares and 60 centares, is the biggest among the three lots, an ordinary prudent man

104
would have taken these steps if he honestly believed he had any right thereto. Yet, private
respondent Vicente did neither, In fact such inaction persisted even during the pendency of the
intestate proceedings wherein he could have readily intervened to seek exclusion of fields nos. 3, 4
and 13 from the inventory of properties of the late Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not delivered to him together
with fields nos. 4 and 13 because there were small sugar cane growing on said field at that time
belonging to TABACALERA, might be taken as a plausible explanation why he could not take
immediate possession of lot no. 3, but it certainly could not explain why it took him four years before
instituting an action in court, and very conveniently, as petitioners noted, after Villanueva had died
and at the time when the verbal contract of lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the
lease agreement, simply because the former had been reduced to writing, while the latter was merely
verbal. It must be observed, though, that the contract/promise to sell was signed by petitioner Goñi
as attorney-in-fact of the late Praxedes Villanueva, an indication, to our mind, that final arrangements
were made by petitioner Goñi in the absence of Villanueva. It was therefore natural for private
respondent Vicente to have demanded that the agreement be in writing to erase any doubt of its
binding effect upon Villanueva. On the other hand, the verbal lease agreement was negotiated by and
between Villanueva and private respondent Vicente themselves. Being close friends and relatives 17
it can be safely assumed that they did not find it necessary to reduce the same into writing. prLL
In rejecting petitioners' contention respecting the verbal lease agreement, the appellate court put
much weight on the failure of petitioners to demand an accounting of the produce of fields nos. 4 and
13 from 1950 to 1954, when the action for recovery of property was filed. Such failure was
satisfactorily explained by petitioners in their motion for reconsideration filed before the then Court
of Appeals, in this manner:
". . . Mr. Genaro Goñi is also a farmer by profession and that there was no need for him to demand a
yearly accounting of the total production because the verbal lease agreement was for a term of 5
years. The defendant Mr. Genaro Goñi as a sugar planter has already full knowledge as to the annual
income of said lots nos. 4 and 13, and since there was the amount of P12,460.25 to be liquidated, said
defendant never deemed it wise to demand such a yearly accounting. It was only after or before the
expiration of the 5 year lease that said defendant demanded the accounting from the herein plaintiff
regarding the production of the 2 lots that were then leased to him.
"It is the custom among the sugar planters in this locality that the Lessee usually demands an
advance amount to cover the rental for the period of the lease, and the demand of an accounting will
be only made after the expiration of the lease period. It was adduced during the trial that the amount
of P12,460.75 was considered as an advance rental of the 2 lots which was leased to the Plaintiff, lots
nos. 4 and 13, so we humbly believe that there was no necessity on the part of defendant Mr. Genaro
Griño to make a yearly demand for an accounting for the total production of 2 parcels leased to the
plaintiff." 18
Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently
novated into a verbal lease agreement, it follows that they are entitled to a favorable decision on
their counterclaim. Discussion of the third issue raised therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the estate
of private respondent Gaspar Vicente and or his successors-in-interest are hereby ordered to: a)
surrender possession of fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners;
b) render an accounting of the produce of said fields for the period beginning crop-year 1950-51
until complete possession thereof shall have been delivered to petitioners; and c) to pay the
corresponding annual rent for the said fields in an amount equivalent to 15% of the gross produce of
said fields, for the periods beginning crop-year 1950-51 until said fields shall have been surrendered
to petitioners, deducting from the amount due petitioners the sum of P12,460.24 advanced by
private respondent Gaspar Vicente.

105
XIV Maralit v. Lardizabal (54 Phil. 252)
EN BANC

[G.R. No. 30472. January 20, 1930.]


MARIANO MARALIT AND EMETERIO LOTA, plaintiffs-appellants, vs. REYNALDO
LARDIZABAL, as judicial administrator of the estate of Germana Solis, defendant-
appellant.
Jose V. Villapando, for plaintiffs-appellants.
Guevara, Francisco & Recto, for defendant-appellant.
SYLLABUS
1. PLEADING AND PRACTICE; COMPETENCY OF WITNESSES. — Section 383 of
the Code of Civil Procedure, providing that parties or assignors of parties to an action
or proceeding, or persons in whose behalf an action or proceeding is prosecuted
against an executor or administrator or other representative of a deceased person,
upon a claim or demand against the estate of such deceased person, cannot testify
as to any matter of fact occurring before the death of such deceased person, is
applicable where the deceased died either or after the suit filed against him, if, since
the reason for the prohibition, which is to discourage perjury, exists in both
instances.
DECISION
AVANCEÑA, C.J p:
On February 15, 1920, the deceased Germana Solis entered into a contract with the
plaintiffs for the repair of her house situated in the municipality of Lipa, Province of
Batangas, for the sum of P14,000.
Plaintiffs allege that they have performed the work, but have only received P11,550
from Germana Solis, thus leaving a balance of P2,450 due them according to the
contract. They also allege that they performed additional work not included in the
contract. They pray that the defendant, who is the judicial administrator of the
intestate estate of Germana Solis, be ordered to pay them the remainder of the price
stipulated in the contract, the value of the additional work done, and damages, which
they allege they sustained by reason of the contract.
The defendant, on the other hand, filed a cross-complaint for the foreclosure of the
mortgage given by the plaintiff, Mariano Maralit, to secure the fulfillment of his
obligations under the contract, and a counterclaim for the value of the materials and
labor engaged by defendant on account of the plaintiff's having abandoned the work,
and for damages caused by the delay in the completion thereof.
The court below ordered the defendant to pay the plaintiffs the sum of P2,450, being
the unpaid balance of the price stipulated in the contract, with legal interest from the
date of the filing of the complaint, namely, January 17, 1926; absolved the
defendant from the other causes of action, and absolved the plaintiff's from the
counterclaim and the cross-complaint. From this decision both parties appealed.
One of the errors assigned by the plaintiff's to the court below is its failure to
adjudge the defendant in default, and its admission of the demurrer and answer filed
by the defendant after the period fixed for their presentation. At any rate, according
to section 110 of the Code of Civil Procedure, it is within the discretion of the trial
court to admit these pleadings even after the same time fixed for their presentation.
Not only do we find that the trial court did not made use of it, considering that the
defendant did not file his demurrer and his answer within the legal period, because
he awaited first the ruling on his petition deprecating the plaintiff's appeal from the
resolution of the committee on claims and appraisal.
The appellants also contend that the trial court committed an error in the rejection of
Exhibit C. Neither is there any merit in this assignment of error, for it appears that

106
this exhibit was only prepared during the trial of this case. And, even taking it into
account, it is valueless to prove the additional work alleged by the plaintiffs to have
been performed by them, for it contains no specification but simply the partial totals
of the amounts expended on said alleged additional work.
As to the court's having refused to admit the testimony of plaintiff Mariano Maralit to
prove that the deceased Germana Solis, in the course of the work, ordered some
additional repairs to be made not included in the contract, neither do we find any
error in this conclusion, based upon section 383, paragraph 7 of the Code of Civil
Procedure. It is alleged that this provision is inapplicable because Germana Solis died
only after the complaint had been filed against her. But the law does not state that it
only refers to cases where the deceased died before the action was instituted.
Moreover, the purpose of the prohibition, which is to discourage perjury may be
applied where the deceased died either before or after the filing of the suit against
her, if, when the testimony is given, she is already dead and cannot disprove it.
As to the rest, a careful examination of the contract between parties and the
additional work alleged, leads to the same conclusion as that reached by the court
below, that said additional work may well come within the general terms of the
contract, and that, if there appears to be any, the evidence does not support the
allegation.
With regard to the counterclaim filed by the defendant, we likewise agree with the
trial court that the expenses alleged to have been incurred by the defendant may
have been incurred upon the additional work admitted by the court below, although
the evidence contains no specification, or upon the old house not referred to in the
contract. The same may be said of the labor. The defendant admits that not all the
materials listed in Exhibit 1 were employed in repairs under the contract, and this
exhibit contains expenditures made subsequent to the delivery of the house.
With respect to the materials taken from the old house and used by the plaintiff in
the repairs, the latter is not bound to pay for them, for, although he undertook to
pay for the materials, the contract calls only for the enlargement and remodelling of
the old house, and he was therefore authorized to utilize the useful materials of the
house itself, if, as in this case, there is no agreement to the contrary.
As regards the P300 claimed as damages for the faulty construction of the azotea,
the repairs having not yet been made, this amount cannot be accepted as the exact
cost. The defendant's mere statement to this effect is not sufficient as it does not
appear that he is an expert.
Upon the question of the damages claimed on account of the delay of one hundred
eighty six days in the completion of the work, the fact that the plaintiff performed
some additional work for the improvement of the house excuses him.
Wherefore, the judgment appealed from is affirmed, without costs. So ordered.
Johnson, Street, Villamor, Johns and Villa-Real, JJ., concur.

Section 24
XV(Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005)
MAXIMO ALVAREZ, petitioner, vs. SUSAN RAMIREZ, respondent.
DECISION
SANDOVAL-GUTIERREZ, J p:
Before us is a petition for review on certiorari 1 assailing the Decision 2 of the Court of Appeals dated May
31, 2000 in CA-G.R. SP No. 56154, entitled "SUSAN RAMIREZ, petitioner, versus, HON. BENJAMIN
M. AQUINO, JR., as JUDGE RTC, MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents."
STaIHc

107
Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN for arson 3
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 xxx 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 xxx xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx xxx 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 Esperanza's direct testimony against petitioner, the latter showed "uncontrolled emotions,"
prompting the trial judge to suspend the proceedings. cADTSH
On June 30, 1999, petitioner, through counsel, filed a motion 5 to disqualify Esperanza from testifying
against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.
Respondent filed an opposition 6 to the motion. Pending resolution of the motion, the trial court directed
the prosecution to proceed with the presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from
further testifying and deleting her testimony from the records. 7 The prosecution filed a motion for
reconsideration but was denied in the other assailed Order dated October 19, 1999. 8
This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN, to
file with the Court of Appeals a petition for certiorari 9 with application for preliminary injunction and
temporary restraining order. 10
On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders
issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case
No. 19933-MN.

108
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
latter's 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 Ordoño 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. cCTESa
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. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to
apply the Marital Disqualification Rule."
It should be stressed that as shown by the records, prior to the commission of the offense, the relationship
between petitioner and his wife was already strained. In fact, they were separated de facto almost six
months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the
marriage between petitioner and Esperanza is no longer an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that
the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of
Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco 14 ), "it
was the latter himself who gave rise to its necessity." ADcSHC
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.

109
SO ORDERED.
Panganiban, Corona, Carpio-Morales and Garcia, JJ., concur.

Section 33
XVI(Molina vs. People. 259 SCRA 138.)

RAFAEL T. MOLINA and REYNALDO SONEJA, petitioners, vs. THE PEOPLE OF THE PHILIPPINES
and the HON. INTERMEDIATE APPELLATE COURT, respondents.
K.V. Faylona & Associates and Ruperto Kapunan, Jr. for petitioners.
The Solicitor General for respondents.
SYLLABUS
REMEDIAL LAW; EVIDENCE; TESTIMONY OF A WITNESS; EFFECT OF THE AFFIDAVIT OF
RECANTATION. — Affidavits of recantation made by a witness after the conviction of the accused is
unreliable and deserves scant consideration. Indeed, it is a dangerous rule to set aside a testimony which
has been solemnly taken before a court of justice in an open and free trial and under conditions precisely
sought to discourage and forestall falsehood simply because one of the witnesses who had given the
testimony later on changed his mind. Such a rule will make solemn trials a mockery and place the
investigation of the truth at the mercy of unscrupulous witnesses. Unless there be special circumstances
which, coupled with the retraction of the witness, really raise doubt as to the truth of the testimony given by
him at the trial and accepted by the trial judge, and only if such testimony is essential to the judgment of
conviction, or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused
based on such a retraction would not be justified. This Court has always looked with disfavor upon
retraction of testimonies previously given in court. The asserted motives for the repudiation are commonly
held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently and
deservedly subject to serious doubt. Mere retraction by a prosecution witness does not necessarily vitiate
the original testimony if credible. The rule is settled that in cases where previous testimony is retracted and
a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which
testimony to believe is one of comparison coupled with the application of the general rules of evidence. A
testimony solemnly given in court should not be set aside and disregarded lightly, and before this can be
done, both the previous testimony and the subsequent one should be carefully compared and juxtaposed,
the circumstances under which each was made, carefully and keenly scrutinized, and the reasons or motives
for the change, discriminatingly analyzed. The unreliable character of the affidavit of recantation executed
by a complaining witness is also shown by the incredulity of the fact that after going through the
burdensome process of reporting to and/or having the accused arrested by the law enforcers, executing a
criminal complaint-affidavit against the accused, attending trial and testifying against the accused, the said
complaining witness would later on declare that all the foregoing is actually a farce and the truth is now
what he says it to be in his affidavit of recantation. And in situations, like the instant case, where testimony
is recanted by an affidavit subsequently executed by the recanting witness, we are properly guided by the
well-settled rules that an affidavit is hearsay unless the affiant is presented on the witness stand and that
affidavits taken ex-parte are generally considered inferior to the testimony given in open court.
DECISION
HERMOSISIMA, JR., J p:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court whereby petitioners Rafael
Molina and Reynaldo Soneja seek the review of the decision 1 of the Court of Appeals 2 affirming their
conviction 3 for the crimes of Estafa through Falsification of Public Documents 4 and Violation of Section
3 (h) of Republic Act No. 3019, as amended, 5 otherwise known as the Anti-Graft and Corrupt Practices
Act.
Petitioners, together with Rudy Concepcion and Aristeo Arcilla. Jr. were charged before the then Court of
First Instance of Catanduanes under Criminal Case No. 659 for Estafa thru Falsification of Public
Document under Article 315 in relation to Article 171 of the Revised Penal Code allegedly committed in
this wise:
"That on or about and during the period from August 1, 1977 to November 11, 1977, the above-named
accused Rudy T. Concepcion, chief of the JMA Memorial Hospital, San Andres, Catanduanes, a
government owned and operated institution; Reynaldo C Soneja, Administrative Officer and Cashier of the

110
same hospital; Aristeo T. Arcilla, Jr., Bookkeeper of the same hospital and Rafael T. Molina, in his
capacity as Assistant Provincial Auditor of Catanduanes, conspiring and confederating with one another,
did then and there willfully, unlawfully and feloniously, with intent of gain, simulated and falsified public
documents consisting of requisition and issue vouchers, canvass papers, bidders (sic) tenders, contract of
sale, invoices and general vouchers, thereby making it appear that the D'Vinta Marketing Center owned and
operated by Homer Tabuzo, sold and delivered to the JMA Memorial Hospital supplies consisting of 50
pieces of bed sheets, 25 pieces of patients (sic) gowns, 10 gallons of merthiolate, 10 gallons of lysol
disinfectant and 10 gallons of muriatic acid, worth P7,610.00, thereby facilitating and making possible the
issuance of Treasury Cheque Nos. SN 3-9982421 and SN 3-9982422 in the total amount of P7,610.00
payable to the order of the D'Vinta Marketing Center and cashed the aforesaid treasury cheques at the PNB
Virac Branch by forging the signature of Homer Tabuzo making it appear in said cheques that the original
payee indorsed the cheques to the accused Rafael Molina who also signed said cheques indorsing the same
to the accused Aristeo Arcilla, Jr., thereby enabling the said accused after cashing the cheques to
appropriate or divide among themselves the amount of P7,610.00, to the damage and prejudice of the
government who was defrauded in the aforesaid amount, and to the damage and prejudice of Homer
Tabuzo, who suffered a besmirched reputation thereby entitling the latter to moral damages in the amount
of P50,000.00." 6
Petitioners, together with said Rudy Concepcion and Aristeo Arcilla and one Oliver Vargas were charged
before the same trial court under Criminal Case No. 658 for Violation of Section 3 (h) of RA. 3019, as
amended, purportedly committed in this fashion:
"That on or about and during the period from August 1, 1977 to November 11, 1977, the above-named
accused Rudy T. Concepcion, Chief of the JMA Memorial Hospital, San Andres, Catanduanes, a
government owned and operated institution; Reynaldo C. Soneja, Administrative Officer and Cashier of the
same hospital; Aristeo T. Arcilla, Jr., Bookkeeper of the same hospital; Rafael T. Molina, in his capacity as
Asst. Provincial Auditor of Catanduanes and Oliver F. Vargas, Checker-Inspector of the Provincial
Auditor's Office, same province, conspiring and confederating with one another, did then and there
willfully, unlawfully and feloniously simulated a contract or transaction making it appear that the D'Vinta
Marketing Center, owned and operated by Homer Tabuzo, sold and delivered to the JMA Memorial
Hospital supplies consisting of 50 pieces bed sheets, 25 pieces patients (sic) gowns, 10 gallons of
merthiolate, 10 gallons of muriatic acid and 10 gallons of lysol disinfectant worth P7,610.00 by simulating
and falsifying requisition and issue vouchers, canvass papers, bidders (sic) tenders, contract of sale,
invoices and general vouchers, thereby making possible the issuance of Treasury Cheques Nos. SN 3-
9982421 and SN 3-9982422 in the total amount of P7,610.00, as supposed payment for the above-described
undelivered medical and/or hospital supplies which up to the present have never been delivered for the
simple reason that the proprietor and manager of the D'Vinta Marketing Center had no knowledge
whatsoever of the aforesaid illegal transaction defrauding the government in the amount of P7,610.00
thereby directly having financial or pecuniary interest in the aforesaid transaction in connection with which
the above-named accused took part in their respective official capacities in which they are prohibited by
law from having any such interests; said accused having appropriated and/or divided among themselves the
aforesaid amount." 7
These two cases were jointly tried upon agreement of the parties.
The facts as adduced by the Solicitor General without objection from the accused in any of their subsequent
pleadings are as follows:
"THE FACTS
xxx xxx xxx
8. On August 23, 1977, petitioner Reynaldo C. Soneja was the Administrative Officer, Cashier (sic)
Supply and Disbursing Officer of Juan M. Alberto Memorial Hospital (JMA) of Virac, Catanduanes, a
government-owned institution (p. 4, tsn., April 19, 1979) Accused Aristeo T. Arcilla, Jr., was the
bookkeeper. On the other hand, accused Oliver Vargas was the checker-inspector of the Provincial
Auditor's Office and petitioner Rafael T. Molina was the Assistant Provincial Auditor of Catanduanes (pp.
27-28, tsn., January 18, 1979; Exh. 'D', Envelope of Exhibits, unnumbered).
9. On November 11, 1977 at about 8:30 o'clock in the morning, Asuncion Tabuzo was in their house
at Salvacion, Virac, Catanduanes. Her husband Homer Tabuzo left that morning for Manila (Exh 'J', p. 56,
tsn., March 21, 1979). Molina arrived and asked her to give him an invoice of their business establishment,
the D'Vinta Marketing Center (p. 101, tsn, March 21, 1979; p. 179, record). She refused as she was not

111
authorized by her husband Homer to give their invoice (p. 102, tsn, ibid.). Molina intimated to her that he
will use the invoice to facilitate the processing of a check from JMA Memorial Hospital in favor of D'Vinta
Marketing Center (p. 180, record). Molina left as she stood pat on her decision not to give him any invoices
(p. 102, tsn, March 21, 1977; p. 180. record).
10. In the afternoon of the same day, Molina returned to the Tabuzo residence with Arcilla, Jr. With
them were two Treasury Warrants (Nos. 9982421 and 9982422) payable to the order of D'Vinta Marketing
Center (p. 180, rec.). Molina asked her to indorse the Treasury Warrants in his favor (pp. 102-103, tsn, ibid;
p. 180, ibid). Again, she refused because her husband had no transaction with JMA Memorial Hospital
(ibid). They left when they could not convince her (p. 104, tsn, ibid.).
11. Later, Asuncion 's son, Ronald Tabuzo, went to their house (p. 104, tsn, ibid., p. 108, rec.). He
came from PNB Virac Branch to withdraw from their savings deposit. He said that in the PNB Branch he
saw Arcilla, Jr. cash two checks which are payable to the order of the D'Vinta Marketing Center (p. 180,
rec.). Immediately, Asuncion went to the PNB Virac Branch and asked Manuel Romero, the teller, how the
Treasury Warrant (check) Nos. 9982421 and 9982422 were encashed despite their non-indorsement by her
and her husband (ibid.). Romero explained to her that he thought the signatures on the two checks were the
signatures of Homer Tabuzo; that the second indorsement contains what appears to be the genuine
signature of Molina and that the third indorsement thereat appears to be by Arcilla, Jr. (ibid.). In view
thereof Manuel Romero claimed that he paid the amount of P7,610.00 to Arcilla, Jr. (pp. 27-31, tsn, March
21, 1979).
12. On November 12, 1977, Asuncion received a long distance call from Homer. She asked him if he
had made deliveries of hospital and medical supplies to the JMA Memorial Hospital which would entitle
him to the issuance of Check Nos. 9982421 and 9982422 in the total sum of P7,610.00. He said he had not.
When informed that the aforesaid checks were already encashed by Molina and Arcilla, Jr., he instructed
her (Asuncion) to file a formal complaint with the Fiscal's Office and to request the bank authorities to
allow her to obtain xerox copies of the said checks (pp. 180-181, record). She went to the Fiscal's Office to
file her complaint but due to the absence of the stenographer thereat, she had to proceed to the
Headquarters, Catanduanes Constabulary Command, at Camp Francisco Camacho, Virac, Catanduanes,
where she executed a sworn statement about the incident (pp. 179-181, rec.). She was also to get xerox
copies of the two checks from the Acting Cashier of PNB Virac Branch Estelito Bagadiong (ibid.).
13. On November 16, 1977, Homer Tabuzo arrived from Manila (pp. 56-60, tsn, March 21, 1979). On
the following day, he went to the Headquarters of the Catanduanes Constabulary Command at Virac, where
he also filed a formal complaint regarding the falsification of his signature in the invoice of his
establishment as well as in the two checks encashed by Molina and Arcilla, Jr. In his sworn statement, he
stated that the accused conspired with one another in simulating bidder's tender, canvass, contract, voucher
and invoices to make it appear that he sold to the HMA (sic) Memorial Hospital supplies while in truth he
had not. Furthermore, he stated that he did not deliver any hospital supplies because he did not enter into
any contract with the said hospital. (p. 182, rec.; pp. 46-51, tsn, March 21, 1979.
14. On November 18, 1977, Sergeant Monico B. Peyra of the Catanduanes Constabulary Command
conducted an investigation regarding the complaint of Homer Tabuzo and Concepcion Tabuzo; and,
thereafter, or on November 21, 1977, he filed criminal complaint against the accused for violation of the
Anti-Graft and Corrupt Practices Act, and Estafa thru Falsification of Public Documents with the Provincial
Fiscal of Catanduanes (pp. 175-177, rec.). A preliminary investigation was conducted by Fiscal Edgardo S.
Surtida (pp. 189-245, rec.).
15. On January 18, 1978, Salvador Echavez (sic), Officer-In-Charge of the Office of the Provincial
Auditor of Virac, Cataduanes, appeared before Fiscal Surtida in compliance with the latter's subpoena
duces tecum He (Salvador Echano) brought with him several documents concerning the alleged purchased
of (sic) D'Vinta Marketing Center (p. 31, tsn, January 18, 1979; pp. 209-213, rec.). The aforesaid
documents were retrieved by Echano from the possession of accused Oliver Vargas (p. 31, tsn, ibid., p.
209, rec.).
From these documents, Fiscal Surtida found an undated voucher of JMA Memorial Hospital evidencing
payment to D'Vinta Marketing Center in the sum of P2,110.00 for ten gallons of merthiolate, ten (10)
gallons of Lysol and ten (10) gallons of muriatic acid (Exh. 'F'). The documents supporting aforesaid
voucher (Exh 'G') are the following:
(a) Requisition and Issue Voucher dated August 23, 1977, for ten (10) gallons of merthiolate, ten (10)
gallons of Lysol and ten (10) gallons of muriatic acid. In this voucher Soneja certified that the supplies

112
requisitioned were necessary and will be used solely for the purpose stated. He further acknowledged
receipt of the supplies requisitioned. Vargas wrote thereat the word 'Inspected' (Exhs. 'D', '4-A' and '4-b').
There was no certification made by Arcilla, Jr., as bookkeeper, that there are available funds (ibid.);
(b) Canvass paper dated August 23, 1977 allegedly addressed to Virac Pharmacy of Catanduanes, for
ten (10) gallons of merthiolate, ten (10) gallons of lysol and ten (10) gallons of muriatic acid. Said
establishment allegedly gave the unit price of P99.00 for merthiolate, P69.00 for lysol and P52.00 of (sic)
muriatic acid. This canvass was initialed by Soneja (Exh. 'A');
(c) Canvass paper dated August 23, 1977 allegedly addressed to Catanduanes Pharmacy, for ten (10)
gallons of merthiolate with a unit price of P98.00, ten (10) gallons of lysol with a unit price of P68. 00 and
ten (10) gallons of muriatic acid with a unit price of P55.00. A certain 'B. Reyes' signing for the dealer gave
the aforestated price. This canvass was also initialed by Soneja (Exh 'B');
(d) Canvass paper dated August 23, 1977 allegedly addressed to D'Vinta Marketing Center of Virac,
Catanduanes, for ten (10) gallons of lysol and ten (10) gallons of muriatic acid, no unit cost stated, and
initialed by Soneja (Exh 'C'). An illegible signature appears on the position 'signature of dealer' (ibid.);
(e) An abstract of price quotations or Bid dated August 23, 1977, signed by Soneja as Administrative
Officer and approved by Concepcion. This document reflected the requisition of JMA Memorial Hospital
(Exh 'D') and canvass (Exhs. 'A', 'B' and 'C') for ten (10) gallons of merthiolate, ten (10) gallons of lysol
and ten (10) gallons of muriatic acid, and awarded to D'Vinta Marketing Center. Virac and Catanduanes
Pharmacies appeared to have made higher bids than that of D'Vinta Marketing Center(Exh. 'E');
(f) A Sales invoice No. 0516 of D'Vinta Marketing Center, dated August 25, 1977. This document
stated the delivery to JMA Memorial Hospital of ten (10) gallons of merthiolate for P95.00, ten (10) gallons
of lysol for P680.00 and ten (10) gallons of muriatic acid for P480.00. Soneja affixed his signature below
the statement printed on the lower right portion of the document 'Received above merchandise in good
order and condition' (Exh '5-A');
(g) Treasury Check No. 9982421 was issued pursuant to the aforestated voucher in favor of the
D'Vinta Marketing Center (p. 40, tsn., Jan. 18, 1979; Exh 'G-6'). It was prepared and signed by Soneja (Exh
'H'). The voucher (Exh 'G-5') was not signed by the creditor. It does not bear a number corresponding to the
hospital; it has no number in the Auditor's Office, no date, no journal entry, no initial of the pre-auditing
clerk; and no indication as to when it was pre-audited. Neither was the official receipt acknowledging
payment attached to the voucher (pp. 34-39, tsn., Jan. 18, 1979). Finally, above the typewritten name of
provincial auditor Salvador F. Echano, petitioner Molina signed for the said auditor although he had not
been authorized to do so (pp. 33-34, tsn, ibid.).
In that voucher (Exh 'G') Arcilla, Jr. certified that there are adequate available funds; the purchase was
supported by documents, and the account codes are proper (Exh 'G-2'). Likewise, Soneja certified that the
expenses are necessary, lawful and incurred under his direct supervision. He further certified that the prices
are just, reasonable and not in excess of the current rates in the locality (pp. 4-5, April 19, 1979; Exh. 'G-
3'). In the said document, Dr. Rudy T. Concepcion affixed his signature approving the said transaction as
Chief of the hospital (Exh 'G-1 '; pp. 45-46, tsn, April 18, 1979).
17. Another undated voucher of the JMA Memorial Hospital indicates a payment of the sum of
P5,500.00 to D'Vinta Marketing Center for hospital supplies allegedly delivered to it (Exh. 'P', p. 52, tsn,
April 18, 1979). It contains the same certification made by Soneja in the first other voucher that the
expenses are necessary, lawful and incurred under his direct supervision and that the price is just and
reasonable and not in excess of the current rates in the locality. Arcilla, Jr. also certified that there are
adequate available funds; that the purchase was supported by documents and the account codes are proper
(Exhs. 'P', 'P-3' and 'P-4'). The signature of Concepcion appeared thereat approving the said transaction
(Exh 'P-2'). Molina signed above the typewritten name of provincial auditor Salvador F. Echano although
he had not been authorized to do so by the latter official (Exh 'P-1', p. 47, tsn., January 18, 1979). Treasury
Check No. 9982422 was issued therefore in favor of D'Vinta Marketing Center (Exhs. 'P-6' and 'P-5'). This
check was prepared and signed by Soneja (Exh. 'Q').
Supporting the aforesaid hospital voucher (Exh. 'P') are the following documents:
(a) Hospital Requisition and Issue Voucher dated September 12, 1977 for fifty (50) pieces of bed
sheet and twenty-five (25) pieces of patients gown. Accused Soneja certified thereat that the supplies
requisitioned are necessary and will be used solely for the purpose stated. He further acknowledged receipt
of the supplies requisitioned. Concepcion approved the said requisition voucher (Exhs. 'I' and '7-B'), while

113
Vargas wrote 'Inspected ' and signed therein (Exh. '7-A '). But Arcilla, Jr. did not certify thereto as to the
availability of funds (ibid.);
(b) Invitation to bid dated September 12, 1977 addressed to D'Vinta Marketing Center of Virac,
Catanduanes, for fifty (50) pieces of bed sheet with a unit price of P85.00 and twenty (sic) (25) pieces of
patients gown with a unit price of P74.00 allegedly specified by the said establishment. This document was
allegedly signed by Homer Tabuzo, the owner of the store (Exhs. 'J' and 'J-1'). There is no signature of
Concepcion above his typewritten name (ibid.);
(c) Invitation to bid dated September 12, 1977 addressed to G'Ser Enterprise of Sta. Cruz, Manila, for
fifty (50) pieces of bed sheet and twenty five (25) pieces of patient gown with the price of P85.00 and
P74.00 respectively, allegedly specified by 'G. Serafica', the owner of the said establishment (Exhs. 'K' and
'K-1'). Likewise, above the typewritten name of Concepcion, there is not (sic) signature thereon (ibid.);
(d) Invitation to bid dated September 12, 1977 addressed to Jomel Trading of Naga City, for fifty (50)
pieces of bed sheet and twenty five (25) pieces of patients gown. The said establishment allegedly specified
the unit price for bed sheet at P80.00 and for the patients gown, P75.00. No signature of Concepcion
appears above his typewritten name (Exhs. 'L' and 'L-1');
(e) An abstract of price quotation or bid dated Sept. 16, 1977, signed by accused Soneja as
Administrative Officer of the hospital and approved by Concepcion as Chief of hospital Reflected thereat
are the alleged bids of Jomel Trading, G'Ser Enterprise, and D'Vinta Marketing Center for fifty (50) pieces
of bed sheet and twenty five (25) pieces of patients gown, and the award of the contract to D'Vinta
Marketing Center being the lowest bidder (Exhs. 'M' and 'N');
(f) A mimeographed form contract dated September 17, 1977 between Juan M. Alberto Memorial
Hospital and D'Vinta Marketing Center, wherein the latter would furnish the hospital fifty (50) pieces of
bed sheet and twenty five (25) pieces of patients gown within fifteen days from receipt of a copy of the
approved contract by D'Vinta Marketing Center. This document was signed only by Concepcion as
representative of the hospital, while D'Vinta Marketing Center did not (Exh 'N');
(g) A Sales Invoice No. 0515 of D'Vinta Marketing Center, dated September 21, 1977. This document
stated the delivery to JMA Memorial Hospital of fifty (50) pieces of bed sheet for P3, 750.00 and twenty
five (25) pieces of patients gown for P1,750.00 Soneja affixed his signature below the statement: 'Received
above merchandise in good order and condition' (Exh. 'D', p. 56, tsn, April 18, 1979).
18. In the investigation of the transaction by Fiscal Surtida on January 18, 1978, Benita T. Reyes, the
owner of Catanduanes Pharmacy, denied having signed her name on the canvass paper (Exh. 'B') dated
August 23, 1977 of JMA Memorial Hospital; that she did not receive the said canvass paper of JMA
Memorial Hospital; that she did not make a price quotation in the canvass paper (Exh 'B') concerning ten
(10) gallons of merthiolate, lysol and muriatic acid, that she did not participate in any transaction with the
JMA Memorial Hospital (p. 214, record, pp. 5, 17-23, tsn, January 18, 1979).
Likewise, Deogena S. Garcia, proprietor of Virac Pharmacy denied in the aforestated investigation that she
signed her name on the canvass paper (Exh. 'A') dated August 23, 1977 of JMA Memorial Hospital; that
she never received the said canvass paper from JMA Memorial Hospital; that she saw it for the first time
when it was shown to her by Fiscal Surtida in connection with the investigation of that transaction; that she
did not quote price quotations for ten (10) gallons of Merthiolate, lysol and muriatic acid, that her signature
in the aforesaid canvass paper is forgery and that nobody from JMA Memorial Hospital went to her drug
store in the month of August 1977 to get her price quotation for certain medicines (p. 215, record, pp. 3-5,
tsn, January 18, 1979).
19. On October 25, 1978, Bienvenido G Albacea, Document Examiner of the National Bureau of
Investigation rendered his report on the result of his examination of the questioned signatures and the
standard signatures 'HOMER TABUZO' appearing on the Treasury Warrant SN 3-9982422 (Exh. 'Q-1')
and Treasury Warrant SN 3-9982421 (Exh 'Q-2'). According to him, the questioned signature and the
standard signature 'HOMER TABUZO' were not written by one and the same person (Exhs. 'R' and 'R-7';
pp. 5-14, tsn, March 21, 1979)." 8
In the appeal of petitioners to the respondent court, they faulted the court a quo for holding (1) that all the
accused conspired with one another; and (2) that they were guilty of the crimes charged. 9
In resolving these assigned errors, the respondent Appellate Court was least persuaded by the arguments of
petitioners. Respondent court declared:
"All the appellants ascribe error to the trial Court in finding conspiracy among them in the commission of
estafa thru falsification of public documents.

114
We find no merit in this pretense.
Numerous circumstances appear in the record showing that Molina, Soneja, Vargas and Arcilla had
conspired with one another in simulating the transaction between the D'Vinta Marketing Center with (sic)
the JMA Memorial Hospital. Soneja acknowledged in the requisition and issue vouchers (Exhs 'D', '4-B', 'I'
and '7-B') that he received the materials allegedly delivered by D'Vinta while Vargas stated that he
inspected them (Exhs. '14-A ' and '7-A'). These statements are patently false because D'Vinta did not
deliver any materials to the hospital. Molina, on his part, signed the vouchers for Provincial Auditor
Echano (Exhs. 'G-4' and 'P-1'), although he had no authority from the latter to do so. Moreover, Echano
testified that Vargas kept the supporting documents of the vouchers in his personal file and not in Echano's
office file. Soneja, in turn, gave all checks (Exhs 'H' and 'Q') payable to the D'Vinta not to Homer Tabuzo
but to Arcilla, Jr. who, with Molina, brought said checks to Asuncion Tabuzo. Molina tried to persuade
Asuncion to indorse the checks in his favor but Asuncion refused. Furthermore, Molina represented to PNB
Cashier Bagadiong that the checks had already been indorsed in his favor by Homer Tabuzo which is false
because Tabuzo at the time was in Manila Worse, Molina, indorsed the checks by affixing his signatures
thereon and later gave the cash value thereof to Arcilla.
Evidently, the appellants would not have resorted to these falsities and irregular transactions if they had not
colluded with each other. The totality of the evidence clearly establishes that Soneja requisitioned for 10
gallons of merthiolate, 10 gallons of lysol, 10 gallons of muriatic acid, 50 pieces of bed sheets and 25
pieces of patient's gowns; the hospital voucher for P5,000.00 was not pre-audited by the Provincial Auditor
as required; no canvass was made from the supposed bidders namely, Virac Pharmacy, Catanduanes
Pharmacy, Catanduanes Pharmacy and D'Vinta Marketing Center; all of the Bidders' Tenders submitted by
the three firms were fabricated, no invitations to bid were sent to other alleged bidders and, despite the lack
of basis in the Bidders' Tenders, the transactions were awarded to D'Vinta, the sale of 50 pieces of bed
sheets and 25 pieces of patient's gowns was not signed by Homer Tabuzo, proprietor of D'Vinta; Soneja
and Vargas acknowledged the receipt and inspections of these materials and the delivery to the JMA
Memorial Hospital by D'Vinta although no such delivery was made; Vargas did not submit supporting
documents of the vouchers to the Provincial Auditor and, instead, concealed said documents in his private
files; Arcilla certified to the availability of funds in the vouchers; Molina and Arcilla got the checks from
Soneja and encashed the same with the PNB, Virac Branch, and appropriated the amounts for themselves.
An these circumstances point to no other conclusion than that the appellants conspired with one another
and falsified public documents for monetary gain, which circumstances are patently inconsistent with their
innocence.
xxx xxx xxx
The appellants also maintain that the Court a quo erred in holding them guilty of transgressing RA. No.
3019 despite the fact that the Government did not suffer any damage because the goods were actually
delivered by D'Vinta Marketing Center to JMA Memorial Hospital.
We find no merit in this claim. The record clearly shows that no delivery of the materials in question was
made by D'Vinta Marketing Center to JMA. Homer Tabuzo, himself positively testified that his firm
D'Vinta Marketing Center did not deliver anything to the hospital because he had no contract therewith.
We are satisfied that the evidence on record amply substantiates the trial Court's findings of guilt." 10
Respondent Appellate Court was not persuaded, and neither are we.
What gains unquestionable prominence amidst the nexus of the aforecited circumstances and the avalanche
of documentary evidence therein established is that petitioners did conspire to defraud the government of a
definite amount of money corresponding to the pecuniary worth of medical supplies which, through
falsification of various government requisition, contract and purchase forms, were made to appear by
petitioners to have been ordered and purchased by JMA Memorial Hospital from the D'Vinta Marketing
Center of Homer Tabuzo. Petitioners, before respondent Appellate Court, insisted that the element of
damage essential in the crimes of Estafa and Violation of Section 3 (h) of RA. 3019, as amended, are
lacking in the case at bench, but, like respondent court, we pay no heed to those claims because of their
sheer lack of merit.
The records show that treasury warrants were issued in payment of medical supplies allegedly purchased by
JMA Memorial Hospital. These were honored and paid to petitioner Molina by the PNB when they were
presented for encashment. But, wonder of wonders, how could warrants be issued when the owner of
D'Vinta Marketing Center, Homer Tabuzo, testifying in the court a quo, categorically denied having
delivered the medical supplies alleged to have been purchased from him. It is significant to note that

115
accused Oliver Vargas, the checker-inspector whose signature appears on the invoices, in guarantee of his
compliance with the required inspection of the medical supplies allegedly delivered by D'Vinta Marketing
Center, did not interpose any appeal from his conviction but instead applied for probation.
We find to be correct the assertion of the Solicitor General that:
"Petitioners, in their reply to the Comment filed by the respondents in the instant case, averred that the
testimony of Homer Tabuzo . . . was contradicted by the prosecution's own witness, Rolando Teves,
checker-inspector of the Office of the Provincial Auditor, who purportedly testified during the trial that he
inspected or inventoried the hospital supplies supposedly delivered by Homer Tabuzo.
This assertion by petitioners is misleading. What was testified to by Rolando Teves is that he merely
examined the stock cards of the hospital; never did he claim that he conducted physical examination of the
medical supplies allegedly delivered to the JMA Memorial Hospital. This fact was even admitted by the
petitioners in their brief found on page 16 thereof that witness Rolando Teves qualified his testimony by
stating thereat that what he actually examined were merely the stock cards of the hospital . . . " 11
What inevitably and necessarily impresses us, as in the case of respondent Appellate Court, is that there is
categorical and unequivocal evidence that the government paid taxpayers' money for ghost medical
supplies the alleged delivery of which is an integral part of the conspiratorial plot leaving the plotters no
choice but to persist and insist on their claim of delivery. Although petitioner Soneja stands by his
certification in the invoices that he received the medical supplies in good condition, such claim, however, is
of a dubious nature since it is precisely a necessary premise in the theory of the defense. There should have
been definitive evidence independent of petitioner Soneja's own aforecited certification. There is none. The
asseveration of petitioners that the said medical supplies had been delivered, is mere lip service, and no
clear evidence thereof has been proffered, which evidence is necessitated to shake the formidable case
which the prosecution has made against the petitioners.
In the light of the foregoing, we may not ascribe to respondent Appellate Court the errors which it allegedly
committed as claimed by petitioners. Having stated thus, however, we nonetheless take note of the
Manifestation and Motion 12 filed by petitioners subsequent to the filing by the Solicitor General of their
Comment. 13 Petitioners in the said Manifestation and Motion, alleged that their counsel:
" . . . received a true copy of an affidavit executed by the complaining witness Homer Tabuzo, and
subscribed and sworn to before the Assistant Provincial Fiscal of Catanduanes on July 19, 1985. . . .
In his affidavit, complainant Homer Tabuzo affirmed that he had actually delivered the hospital supplies to
the JMA Memorial Hospital and that the payment therefor was borrowed by Rafael Molina. Tabuzo
explained the reason why he testified in the manner he did at the trial by saying that at the time of trial the
amount taken by Molina had not been paid by the latter and that he was now recanting his testimony
because he had already been paid in full and was no longer interested.
. . . the affidavit of Tabuzo enhances the innocence of the Petitioner at the same time that it renders the
already very doubtful evidence of the prosecution the more incredible. . . .." 14
Attached to the said Manifestation and Motion is a xerox copy of the aforecited affidavit of Homer Tabuzo,
owner of D'Vinta Marketing Center and complainant in the instant case. Said affidavit is reproduced herein
below in full:
"AFFIDAVIT
I, HOMER TABUZO, of legal age, Filipino, married and a resident of Salvacion, Virac, Catanduanes, after
being duly sworn to in accordance with law, depose and say:
1. That I am the owner of the D'Vinta Marketing;
2. That on the month of November 1977, I was expecting a payment from the Juan M. Alberto
Memorial Hospital for supplies delivered by me and received by said Hospital and covered by the
necessary vouchers;
3. That on November 17, 1977, due to some circumstances, I had to go to Manila so I requested Mr.
Rafael Molina to claim the payment from the Juan M. Alberto Memorial Hospital as he usually do (sic) for
me and I authorized him to encash it for me and sign the Check in my behalf and give the amount to my
wife;
4. That when I came back from Manila my wife informed me that the money was not turned over to
her by Mr. Rafael Molina because he said he wanted to borrow first the amount because he needed it badly;
5. That it is for this reason that I filed a case against Mr. Molina and denied the whole transaction;
6. That after some years, the amount thus borrowed was paid back by Mr. Rafael Molina to me and
therefore I am no longer interested in prosecuting this case.

116
AFFIANT FURTHER SAYETH NONE.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of July, 1985 at Virac, Catanduanes.
s/Homer Tabuzo
t/HOMER TABUZO" 15
The Solicitor General strongly discounts the aforequoted affidavit as inconsequential and hardly credible.
He laments such a last ditch, desperate attempt by petitioners to be liberated from criminal proceedings
instituted on account of their illegal and malicious acts which have been proven beyond reasonable doubt
by the prosecution; petitioners, the Solicitor General submits, simply wish to escape criminal responsibility
at all costs.
"This last minute attempt by the petitioners to obtain exculpation based on the subsequent retraction by a
witness should not be granted. Otherwise, it would be a dangerous rule to reject the testimony taken before
the court of justice simply because the witness who had given it later on changed his mind for one reason or
another for such rule will make a solemn trial a mockery and place the investigation of truth at the mercy of
unscrupulous witnesses. For, it is not highly improbable or impossible that such a retraction was made for a
consideration, usually monetary (People vs. Morales, 113 SCRA 683). Hence, complainant's alleged
affidavit of desistance executed during the pendency of the appeal is of no consequence.
. . . Additionally, there are other evidence on the records that would establish the culpability of petitioners
that indeed they defrauded the JMA Memorial Hospital when the said hospital paid for the medical and
hospital supplies that it did not receive. In elucidating this point, the lower court aptly stated that:
'. . . the prosecution was able to prove clearly, satisfactorily and convincingly, that the signatures of persons
who allegedly participated in the price quotation canvass (Exhs. 'A', 'B' & 'C') were all forged or falsified,
that the abstract of the price quotations (Exh 'E') was used inspite of the fact that no price quotation is
indicated in the price canvass addressed to the D'Vinta Marketing Center (Exh. 'C'); that the signatures
which purport to be the signatures of Homer Tabuzo, the owner of D'Vinta Marketing Center, the payee of
the two cheques (Exh 'H' and 'Q') were forged or falsified as shown in the Questioned Document Report of
the NBI dated September 7, 1978 (Exh 'R') testified by NBI Document Examiner Bienvenido Albacea.
There being no contract entered into by and between the JMA Memorial Hospital and the D'Vinta
Marketing received by the hospital, and nothing was inspected as nothing was delivered and received
contrary to the certifications of the accused Reynaldo Soneja that he received the 'merchandise in good
order and condition' as indicated in the two invoices (Exh 'F' and 'O'), and the signature of accused Oliver
Vargas indicating that he inspected the hospital supplies. The invoice dated August 25, 1977 (Exh 'F')
indicating that ten (10) gallons of muriatic acid, ten (10) gallons of merthiolate and ten (10) gallons of lysol
sold to the JMA Memorial Hospital were 'received in good order and condition' by accused Reynaldo
Soneja bears invoice number '0516', while the invoice dated Sept. 21, 1977 (Exh. 'C') indicating that fifty
(50) pieces of bed sheets and twenty-five (25) pieces of patents (sic) gowns sold to JMA Memorial Hospital
were 'received in good order and condition' by accused Reynaldo Soneja bears invoice number '0515'. In
the ordinary course of business, the invoice (Exh 'O'), which bears the number '0515' should have been
issued much earlier than the invoice which bears the number '0516' (Exh 'F'), but the contrary appears
because the invoice (Exh. 'O') bearing a higher number (0516) was issued much earlier on August 25, 1977,
while the invoice (Exh. 'F') bearing the lower number (0515) was issued later on Sept. 21, 1977'. (Decision,
rec.; emphasis supplied)" 16
We are in full accord with the aforegoing legal posture of the Solicitor General.
Affidavits of recantation made by a witness after the conviction of the accused is unreliable and deserves
scant consideration. 17
". . . Merely because a witness says that what he had declared is false and that what he now says is true, is
not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever
crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous
contradictory statement . . . not that a previous statement is presumed to be false merely because a witness
now says that the same is not true. The jurisprudence of this Court has always been otherwise, i e., that
contradictory testimony given subsequently does not necessarily discredit the previous testimony if the
contradictions are satisfactorily explained. (U.S. vs. Magtibay, 17 Phil. 417; U.S. vs. Briones, 28 Phil. 362;
U.S. vs. Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34 Phil. 871)." 18
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of
justice in an open and free trial and under conditions precisely sought to discourage and forestall falsehood
simply because one of the witnesses who had given the testimony later on changed his mind. 19 Such a rule

117
will make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous
witnesses. 20 Unless there be special circumstances which, coupled with the retraction of the witness,
really raise doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge,
and only if such testimony is essential to the judgment of conviction, or its elimination would lead the trial
judge to a different conclusion, an acquittal of the accused based on such a retraction would not be
justified. 21
This Court has always looked with disfavor upon retraction of testimonies previously given in court. 22
The asserted motives for the repudiation are commonly held suspect, and the veracity of the statements
made in the affidavit of repudiation are frequently and deservedly subject to serious doubt. 23
Such being the experience of this court, we should proceed with extreme caution and judicial prudence in
according any probative value to affidavits of recantation in the light of the sad reality that the same can be
easily secured from poor and ignorant witnesses for some financial consideration 24 or through
intimidation. 25 Especially when the affidavit of retraction is executed by a prosecution witness after the
judgment of conviction has already been rendered, "it is too late in the day for his recantation without
portraying himself as a liar." 26 At most, the retraction is an afterthought which should not be given
probative value. 27
Mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible. 28
The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not
contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of
comparison coupled with the application of the general rules of evidence. 29 A testimony solemnly given in
court should not be set aside and disregarded lightly, and before this can be done, both the previous
testimony and the subsequent one should be carefully compared and juxtaposed, the circumstances under
which each was made, carefully and keenly scrutinized, and the reasons or motives for the change,
discriminatingly analyzed. 30 The unreliable character of the affidavit of recantation executed by a
complaining witness is also shown by the incredulity of the fact that after going through the burdensome
process of reporting to and/or having the accused arrested by the law enforcers, executing a criminal
complaint-affidavit against the accused, attending trial and testifying against the accused, the said
complaining witness would later on declare that all the foregoing is actually a farce and the truth is now
what he says it to be in his affidavit of recantation. 31 And in situations, like the instant case, where
testimony is recanted by an affidavit subsequently executed by the recanting witness, we are properly
guided by the well-settled rules that an affidavit is hearsay unless the affiant is presented on the witness
stand 32 and that affidavits taken ex-parte are generally considered inferior to the testimony given in open
court. 33
Applying the aforegoing principles, we are hardly perturbed in our affirmance of petitioners' conviction.
Furthermore, the following antecedent facts and circumstances render the recantation out of context: (1)
complaining witness Homer Tabuzo went through all the trouble of instructing his wife, (while he was in
Manila in November, 1977, when told that the treasury warrants were encashed at the PNB), to file the
proper complaint and to get xerox copies of the treasury warrants from the PNB; (2) he proceeded to the
authorities the day after he arrived from Manila, around five (5) days after the treasury warrants were
encashed, to file a formal complaint regarding the falsification of his signature; and (3) he participated in
the various stages of the investigation and the trial whenever he was summoned by the Fiscal or the Judge.
That he executed the affidavit of recantation in July, 1985 or eight (8) years after the cases were filed,
borders on incredulity. More importantly, the affidavit of recantation did not cover all points raised and
facts established during the trial. Neither did it refute testimonial and documentary evidence of other
witnesses, especially, for instance, the other pharmacy owners who were made to appear to have filed bids
and submitted price quotations, when the truth was that they did not. In short, the said affidavit did not at
all explain the other evidence considered by the court a quo in rendering the judgment of conviction, which
evidence unequivocally shows petitioners to be guilty beyond reasonable doubt of the crimes charged
against them.
WHEREFORE, the petition for review on certiorari under Rule 45 of the decision of the Intermediate
Appellate Court (now the Court of Appeals), dated April 30, 1984, in AC-G.R. Nos. 24729 and 2473-CR,
is HEREBY DISMISSED, with costs.
SO ORDERED.
Padilla, Bellosillo, Vitug and Kapunan, JJ ., concur.

118
Section 36
XVII People vs Hecto
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS HECTO, PEDRO HECTO and
LORETO HECTO, accused, PEDRO HECTO and LORETO HECTO, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Oscar Bati for defendants-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; SWORN STATEMENT OF DECLARANT WHO DID NOT
TESTIFY IN CRIME; CONSIDERED HEARSAY. — We agree with appellants that the sworn statement
of Constancio Bollena who did not testify at the hearing should not have been admitted and considered by
the trial court. As aptly stated by the Solicitor General in his brief, the affidavit of Bollena should not be
considered in passing judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay
evidence for the reason that Bollena never testified in court. Appellants did not have the opportunity to
cross-examine him and test his credibility." (p. 167, Rollo)
2. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; CONSPIRACY ESTABLISHED BY
CONCERT OF ACTION AT TIME OF CONSUMMATING A CRIME. — Considering the concerted
action of Jesus Hecto, appellants Pedro and Loreto Hecto, Marcial Hecto, Roberto and Faustino Silvano,
conspiracy among them has been successfully established by the prosecution. While their companions were
slaying the deceased, appellant Loreto Hecto and Faustino Silvano were by the stairs of the house of
Catalino to prevent any assistance which could come therefrom. After they had accomplished their criminal
or unlawful purpose, they left together. Time and again We have ruled that concert of action at the time of
consummating a crime and the form and manner in which assistance is rendered to the person or persons
inflicting the fatal wounds on their victim determine complicity where it would not be otherwise evident. In
a conspiracy, all are liable for the acts of one.
3. REMEDIAL LAW; EVIDENCE; FLIGHT, EVIDENCE OF GUILT. — The fact that appellants
went into hiding after the incident is evidence of guilt. Pedro Hecto was arrested two months later in
Tacloban City, while Loreto Hecto presented himself before the authorities in March 1974 or after two
years. Their three companions have not yet been arrested up to now.
4. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI, UNAVAILING TO THE FACE OF
POSITIVE IDENTIFICATION. — Against the testimony of the People's witnesses, appellants Loreto and
Pedro Hecto claim that they were elsewhere when the killing took place. Well established is the rule that
where the accused have been positively identified by witnesses as perpetrators of the offense, the defense of
alibi is futile and unavailing.
5. CRIMINAL LAW; COMPLEX CRIME; MURDER WITH ASSAULT UPON A PERSON IN
AUTHORITY; ASSAULT ON BARANGAY CAPTAIN OCCASIONED BY THE OFFICIAL DUTIES
DONE BY HIM. — We now come to the contention of the defense that the trial court erred in convicting
them of the complex crime of murder with assault upon a person in authority. They pointed out that when
the barangay captain was killed he was not in actual performance of his official duties. Be that as it may,
the fact is, the attack on the deceased was occasioned by the official duties done by him. As the barangay
captain, it was his duty to enforce the laws and ordinances within the barangay. If in the enforcement
thereof he incurs the enmity of his people who thereafter treacherously slew him, the crime committed is
murder with assault upon a person in authority.
DECISION
RELOVA, J p:
From the decision of the then Court of First Instance of Leyte, rendered after trial in Criminal Case No.
1093, finding accused Pedro Hecto and Loreto Hecto guilty beyond reasonable doubt of the crime of
murder with direct assault upon a person in authority and sentencing "each of them to the death penalty to
be executed at a date to be set and in the manner provided for by law and to jointly and severally indemnify
the heirs of Barrio Captain Catalino Pedrosa (represented by Mrs. Caridad B. Pedrosa of San Isidro, Dulag,
Leyte) in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency and to pay 2/6
of the costs," (p. 22, Rollo) the aforementioned accused have appealed to this Court. LexLib
Following are the facts.
Sometime in January or February 1972, brothers Jesus Hecto and Pedro Hecto slaughtered a carabao in
barrio San Isidro, municipality of Dulag, Province of Leyte. They did not pay the corresponding "tumbada"

119
or slaughter fee and upon learning of this non-payment, Barangay Captain Catalino Pedrosa asked him
(Jesus) to pay the same. Jesus replied that he could not yet pay the required slaughter fee because those
who bought meat from him had not also paid him yet. Thereafter, Pedrosa met Municipal Treasurer
Benedicto de la Paz who informed him that according to the Hecto brothers they had already paid the
slaughter fee to him (Pedrosa). Pedrosa denied having received the fee mentioned.
On February 27, 1972, Catalino Pedrosa and his wife went to visit their farm and on their way home, about
3:00 in the afternoon, they met Jesus and Pedro Hecto. Pedrosa confronted the two about the false
information they gave the municipal official concerning the alleged payment of the slaughter fee to him. A
heated discussion ensued and the Hectos tried to attack Pedrosa. Mrs. Caridad Pedrosa pulled her husband
away and the trouble was averted.
About 6:00 in the afternoon of March 24, 1972, Catalino Pedrosa left his house in barangay San Isidro to
accompany a two-year old nephew to the house of the child's parents. On his way back, about 6:30 he was
shot by Jesus Hecto and Pedro Hecto and thereafter stabbed by Marcial Hecto and Roberto Silvano. LLphil
Caridad Pedrosa at the time was in her house preparing supper. Upon hearing the sound of a gunfire, she
immediately ran to the door. However, she was prevented from going down the house by Loreto Hecto and
Faustino Silvano, son and nephew, respectively, of Jesus Hecto. They pointed their guns at her.
Notwithstanding, Caridad, could see Jesus Hecto pointing a gun at her husband, Catalino Pedrosa, who was
already lying on the ground face up. This was followed by Pedro Hecto who also fired his own gun at
Pedrosa. Thereafter, Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano carried the victim to a
nearby ditch where Roberto and Marcial took turns in stabbing him with their bolos. The four assailants
then walked away. Loreto Hecto and Faustino Silvano who were at the door of the house of the Pedrosas
guarding Caridad joined the four.
The police was informed of the incident. Acting Chief of Police Nerio dela Cruz, with several policemen,
arrived at the scene of the incident at about 8:00 that evening. They found the dead Pedrosa with three
gunshots and three stab wounds on his body.
During the trial of the case, the accused Jesus Hecto died shortly after he had testified. Accordingly, the
case against him was dismissed by the court. Trial proceeded against Pedro and Loreto Hecto while their
confederates: Roberto Silvano, Marcial Hecto and Faustino Silvano remained at large.
The defense of appellants Loreto Hecto and Pedro Hecto was denial. Loreto testified that at the date and
time of the incident he was in his house two kilometers away from barangay San Isidro drinking tuba with
his hired farm laborers, Pablo Lirios and Felicito Bico. In the morning of that day, March 24, 1972, his
farm laborers plowed his cornfield until about 4:00 in the afternoon. He then offered them tuba which they
drank together in his house. About 6:00, his sister Lolita arrived telling them that their father Jesus fought
with Catalino Pedrosa. He then left for barrio San Isidro to see his parents and, as a precautionary measure,
he brought his mother Maria Ganaron to his house.
Appellant Pedro Hecto declared that on March 23 and 24, 1972 he stayed in his house because the palay
which was harvested on March 21 was being threshed by Beato Andrade and Victor Isyo. The threshing
was finished about 11:00 in the evening of March 24. About 9:00 some members of the police force of
Dulag went to his house looking for his brother Jesus Hecto. They left upon finding that he was not there.
About an hour later, Jesus arrived and said that he had killed somebody and that he was going to town to
surrender. After a few days, he (Pedro Hecto) left for Tacloban City where he worked as carpenter until he
was arrested on June 17, 1972.
Appellants claim that the trial court erred (1) in relying on inadmissible evidence in making a finding of
facts relevant to the judgment of conviction; (2) in rendering a judgment of conviction even if their
respective guilts were not proven beyond reasonable doubt; and (3) in finding that the crime of murder was
committed with assault upon a person in authority. llcd
With respect to the first assigned error, We agree with appellants that the sworn statement of Constancio
Bollena who did not testify at the hearing should not have been admitted and considered by the trial court.
In said affidavit, Bollena said that he was talking with Pedrosa when Jesus Hecto, Pedro Hecto, Loreto
Hecto, Marcial Hecto, Roberto Silvano and Faustino Silvano arrived; that after Loreto Hecto and Faustino
Silvano proceeded to Pedrosa's house, Jesus Hecto immediately drew and fired his gun twice at Pedrosa;
that Jesus then turned his attention to Bollena who ran away and succeeded in evading the shot fired at him
by Jesus. As aptly stated by the Solicitor General in his brief, the affidavit of Bollena should not be
considered in passing judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay

120
evidence for the reason that Bollena never testified in court. Appellants did not have the opportunity to
cross-examine him and test his credibility." (p. 167, Rollo)
However, the conviction of appellants Pedro Hecto and Loreto Hecto by the trial court was not entirely
based on the affidavit of Bollena. There were the testimonies of Caridad Pedrosa and Mario Cadayong.
Hereunder are the said testimonies of Caridad Pedrosa, wife of the victim —
"Q You said that you were inside your house. Immediately after you heard the first gunshot, what did
you do?
ATTY. SANTOS:
Answered already, Your Honor.
COURT:
Let her answer because her testimony on this point is not very clear.
FISCAL CABLITAS:
A I ran towards the door of the house.
Q And you said you were threatened by Loreto and Faustino with guns. Where were you threatened
by them?
A I was threatened by the door of our house because I was not able to go down. When I opened the
door they threatened me with guns.
xxx xxx xxx
Q Did you know what was that gun report — the fourth gunshot report about?
A Yes, sir.
Q What was it about?
A The gunshot was fired by Pedro Hecto. I could see him still holding the gun.
Q To whom was it aimed when you saw that gun which he fired?
A Towards my husband.
xxx xxx xxx
Q When this fourth gunfire was made, were Loreto and Faustino still pointing their guns at you?
A Yes, they were still pointing their guns at me.
Q How did you manage to see what was happening to your husband?
A Because I looked at the two (2) persons pointing their guns to me and at the same time I looked
also at the place where my husband has fallen.
xxx xxx xxx
Q After your husband was fired upon by Pedro Hecto what happened after that?
A They lifted my husband to the culvert.
Q Who lifted your husband?
A The four (4) of them.
Q Who?
A Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano.
xxx xxx xxx
FISCAL CABLITAS:
Q Your husband, as you said, was the barrio captain of your place at the time when he was gunned
down by the accused and by the other persons charged in the information, who are simply residents of the
place who are supposed to be under him. Will you please tell the Court the reason why your husband was
killed?
xxx xxx xxx
A It was in the month of January or February when Jesus Hecto slaughtered their carabao.
Q What year?
A 1972.
Q And then?
A My husband asked for the permit of slaughtering the carabao.
Q What is this "tumbada" in your local parlance?
A Whenever somebody slaughter a carabao, a certain amount is asked from them.
Q For what is this amount — where does this go?
A For the municipal treasurer.
Q Municipal treasurer or barrio treasurer?
A Municipal treasurer.

121
Q And then, was Jesus Hecto able to pay the 'tumbada' to the barrio captain, your husband?
A Jesus Hecto did not give the amount to my husband because according to Jesus Hecto, the persons
who partook of the carabao did not pay him yet.
xxx xxx xxx
FISCAL CABLITAS:
I am asking for the motive, Your Honor.
COURT:
Witness is being asked on what she knows about the motive.
FISCAL CABLITAS:
A Benedicto de la Paz asked my husband about the amount as payment for the slaughter of the
carabao as according to his information, the amount was already given to him.
Q As a result of this, do you know what happened on February 27, 1972, as a result of this 'tumbada'
in question?
A We were from our farm when we passed by Pedro and Jesus Hecto at the waiting shed.
Q And then?
A My husband confronted Jesus Hecto by saying 'You have told there that you have already given
the amount as payment for the slaughter of the carabao; but why did you tell them when you have not given
me this amount yet?'
Q What happened after this?
A There was an exchange of words between my husband and Jesus Hecto.
Q And then?
A I held my husband because they were about to harm my husband.
Q Who were about to harm your husband?
A Pedro Hecto and Jesus Hecto.
Q What did you do?
A I held my husband and we went home.
Q And what did Jesus Hecto and Pedro Hecto do when you held your husband and you went home?
A He said 'Ikaw, Capitan, ka nga estrikto, magkikita kita ha iba nga adlaw.' Meaning, 'You, Bo.
Captain, you are very strict. We will see each other some day." (pp. 310, 311, 314, 315, 323, 3Z4, 325 and
326, tsn., Hearing on January 28, 1975.
and of Mario Cadayong:
"Q You said Catalino Pedrosa was killed, do you know how he was killed?
A Yes, sir.
Q How?
A He was shot.
Q By whom?
A He was shot by Jesus Hecto and Pedro Hecto.
Q Now you are talking about shots, you mean to say that there were guns during the incident?
A Yes, sir.
Q How many guns have you seen?
A Pedro and Jesus Hecto were having one gun each.
xxx xxx xxx
Q And when while you were running towards the coconut tree to take cover, you heard a second
shot?
A I did not run because the coconut tree was very near. While I was going to that tree to hide I saw
Jesus Hecto holding the gun and firing the second fire.
xxx xxx xxx
COURT:
Just answer the question whether Catalino Pedrosa died after quivering.
WITNESS:
A Not yet because he was still shot.
ATTY. TAN:
Q He was shot by whom?
A Pedro Hecto.(pp, 432, 433, 435 & 445, tsn., June 3, 1976 hearing).
xxx xxx xxx

122
COURT:
Will you describe to us in proper sequence what you saw from the time Jesus Hecto pointed his gun to
Catalino Pedrosa who was already fallen on the ground shaking?
A Catalino was shot again by Pedro. Catalino Pedrosa was carried by Pedro Hecto, Jesus Hecto and
Roberto Silvano to the ditch. After that, Catalino was stabbed by Roberto and after that he was again
stabbed by Marcial. We were stepping backwards as we saw Man Caring pointed to with a gun by
someone.
Q Who is Man Caring?
A Caridad Pedrosa.
Q Who was pointing a gun at Caridad Pedrosa?
A Loreto and Faustino.
xxx xxx xxx
Q How about Roberto? You said he stabbed Catalino. What weapon did he use in stabbing at your
uncle?
A He used a pisaw, a small bolo. Maybe it was pisaw.(Witness indicating a length of one-third of a
meter.)
xxx xxx xxx
Q Did you see Pedro Hecto actually fire upon Catalino Pedrosa?
A Yes, sir.
Q Was Catalino hit?
A Maybe, he was hit because Catalino was just in front of Pedro and whose position was lying face
upwards.
Q When Jesus Hecto fired upon Catalino Pedrosa, referring to the second shot you saw, was Pedro
around?
A Yes, sir. He was around. (pp. 243, 244, 245, 247, tsn., September 9, 1975 hearing)
xxx xxx xxx
Q When for the first time did you see Pedro Hecto in the scene of the incident?
A I saw them when they were going to the waiting shed. I saw Jesus Hecto, Pedro Hecto, Marcial
Hecto, Roberto Silvano going to the waiting shed." (p. 450, tsn., June 3, 1976 hearing)
Thus, it is clear that Mrs. Caridad Pedrosa and Mario Cadayong saw the killing of the victim, Catalino
Pedrosa Considering the concerted action of Jesus Hecto, appellants Pedro and Loreto Hecto, Marcial
Hecto, Roberto and Faustino Silvano, conspiracy among them has been successfully established by the
prosecution. While their companions were slaying the deceased, appellant Loreto Hecto and Faustino
Silvano were by the stairs of the house of Catalino to prevent any assistance which could come therefrom.
After they had accomplished their criminal or unlawful purpose, they left together. Time and again We
have ruled that concert of action at the time of consummating a crime and the form and manner in which
assistance is rendered to the person or persons inflicting the fatal wounds on their victim determine
complicity where it would not be otherwise evident. In a conspiracy, all are liable for the acts of one. prcd
The fact that appellants went into hiding after the incident is evidence of guilt. Pedro Hecto was arrested
two months later in Tacloban City, while Loreto Hecto presented himself before the authorities in March
1974 or after two years. Their three companions have not yet been arrested up to now.
Against the testimony of the People's witnesses, appellants Loreto and Pedro Hecto claim that they were
elsewhere when the killing took place. Well established is the rule that where the accused have been
positively identified by witnesses as perpetrators of the offense, the defense of alibi is futile and unavailing.
We now come to the contention of the defense that the trial court erred in convicting them of the complex
crime of murder with assault upon a person in authority. They pointed out that when the barangay captain
was killed he was not in actual performance of his official duties. Be that as it may, the fact is, the attack on
the deceased was occasioned by the official duties done by him. As the barangay captain, it was his duty to
enforce the laws and ordinances within the barangay. If in the enforcement thereof he incurs the enmity of
his people who thereafter treacherously slew him, the crime committed is murder with assault upon a
person in authority. LLjur
WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification that for lack of
necessary votes the sentence is reduced to reclusion perpetua and the indemnity increased to P30,000.00.
With costs.
SO ORDERED.

123
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.
Aquino, J., took no part.

XVIII People vs Amancio

G.R. Nos. L-66917-18 September 24, 1986

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee,


vs.
ADRIANO AMONCIO y OLANTIGUE, EMEGDIO AMONCIO y OLANTIGUE and SILVESTRE
AMONCIO y TAGLE, accused, ADRIANO AMONCIO y OLANTIGUE & EMEGDIO AMONCIO
y OLANTIGUE, accused-appellants.

PARAS, J.:

Two separate informations were filed against the accused-appellants, namely: Criminal Case No. CCC-
XIV-361, charging Adriano Amoncio y Olantigue and Emigdio Amoncio y Olantigue with the offense of
Murder; and Criminal Case No. 3025, charging Silvestre Amoncio y Tagle and Adriano Amoncio y
Olantigue with the crime of Frustrated Murder,

The aforesaid criminal cases refer to the same incident.

After a joint trial on the merits, the trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, the Court finds accused Adriano Amoncio and Emigdio Amoncio GUILTY beyond doubt
of murder for killing Pablito Perocho and accused Adriano Amoncio and Silvestre Amoncio GUILTY of
frustrated murder for stabbing Jose Aboabo. Consequently, accused Adriano Amoncio is hereby sentenced
to the penalty of reclusion perpetua for murder in Criminal Case No. CCXIV-361-Bohol and the
indeterminate penalty of imprisonment from EIGHT (8) YEARS and TWENTY (20) DAYS to
FOURTEEN (14) YEARS for frustrated murder in Criminal Case No. 3025. Accused Emigdio Amoncio is
hereby sentenced to the penalty of reclusion perpetua for murder in said Criminal Case No. CCC-XIV-361-
Bohol. Accused Silvestre Amoncio is hereby sentenced to undergo the indeterminate penalty of
imprisonment from EIGHT (8) YEARS and TWENTY (20) DAYS to FOURTEEN (14) YEARS. He is
entitled to credit for his preventive imprisonment. Each accused is to serve the accessory penalties inherent
in their sentences.

Accused Adriano Amoncio and Emigdio Amoncio are ordered solidarity to indemnify the heirs of Pablito
Perocho the sum of P12,000.00. Accused Adriano Amoncio and Silvestre Amoncio are ordered to
solidarily indemnify Jose Aboabo the sum of P4, 734.00 as actual damages and P2,000.00 as moral
damages. All the accused shall pay the costs.

SO ORDERED.

City of Tagbilaran, January 20, 1984. (p. 7, Rollo).

The case is now before Us on appeal.

The facts of the case, as found by the trial court, are briefly as follows:

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About 6:00 in the evening of November 29, 1981, people started leaving the cockpit, at Bagumbayan, Pilar,
Bohol, bound for their respective homes.

The first group leaving the cockpit was composed of Godofredo Perocho, Segundino Butron, Bienvenido
Espina and Jose Acgang. About ten (10) meters behind was the second group composed of Jose Aboabo,
Adriano Amoncio and Pablito Perocho. A little behind was the third group composed of Hilario Espina,
Sesino Escobal and an unidentified person.

The second group of Jose Aboabo, Adriano Amoncio and Pablito Perocho were singing in trio, placing
their arms over each other's shoulders. When the three reached near the scene of the incident, Adriano
Amoncio shouted "Bagdoki do Teban!" meaning "Hit me, Teban." Suddenly, the aforesaid Adriano
separated himself from his companions, pulled out his dagger and stabbed Pablito from the back. Acting on
Adriano's loud remark, Emigdio (brother of Adriano) and Silvestre (nephew of Adriano and Emigdio
emerged from behind the tree at the side of the road, and rushed at Pablito and Jose. Emigdio stabbed
Pablito at the back below the nape, while Silvestre stabbed Jose on the left side of the chest. Thereafter,
Adriano reached Jose and stabbed the latter in the left armpit. Jose ran away, but Adriano chased him.

Meanwhile, Godofredo Perocho having heard the commotion, turned back and walked towards the second
group. He saw Jose running towards him, pursued by Adriano. Adriano on seeing Godofredo backed out
and ran away. Thereafter, Godofredo heard Pablito (his brother) shouting for help.

Godofredo came upon Pablito, already prostrate on the ground and seriously wounded, and asked Pablito
who stabbed him. The latter managed to declare: "Sila si Adring Amoncio may nagdengab ako", meaning:
"They, Adring Amoncio stabbed me." (Adriano Amoncio was commonly known by his nickname Adring).
Quiliano Butron and HilarioEspina tried to look for a vehicle but the others decided to carry Pablito. On the
way to the hospital, Pablito died. Meanwhile, Quiliano came upon Jose, slumped on the ground
unconscious. Jose was brought to the hospital where he was confined for treatment for eighteen days.

According to Dr. David Indino, he found one stab wound on Jose, located on the hyponchrondriac region,
which punctured and perforated the liver and the lungs. (pp. 2-7, t.s.n.) Dra. Lourdes Tan, who conducted
the post-mortem examination of the cadaver of Pablito, found two stab wounds: one located at the right
shoulder, and the other at the right lumbar region posterior, which was fatal. (pp. 3-7, t.s.n.)

The killing of Pablito was due to his illicit relation with Silvestre's wife before she committed suicide in
June, 1981 (p. 18, Appellee's brief).

On the other hand, appellant Adriano, giving the defense version, testified as follows: That in that evening
of November 29, 1981, he left for home alone from the Pilar cockpit; that, on his way home, he came upon
Jose Aboabo, Godofredo and Pablito Perocho, Quiliano Butron and Hilario Espina arguing at the road
crossing; that Jose and Pablito engaged in a fistic fight; that, he went near to pacify, but he was instead
challenged by Godofredo Perocho; that he went to the Poblacion, to report-the fighting incident to the
police; that later he saw Godofredo and others carrying the dead body of Pablito to the municipal building
and then to Pablito's house. Thus, Adriano denied having stabbed Pablito and Jose.

The defense presented the testimonies of Silvestre and witness Urbano Gador to prove that Silvestre had
been working as laborer in Twin A Bakery, located in Butuan City, from August, 1981 to February, 1982.
Emigdio likewise presented the defense of alibi by declaring that at the time of the incident, he was at
Barangay Inogluban, 6 kilometers from the crime scene, where he harvested rice.

After trial, the trial court convicted all the appellants of the crimes they were respectively charged with.

125
The issue, therefore, rests on credibility. After a careful evaluation of the evidence on record, We find the
prosecution's version deserving of more credence and belief.

Jose's identification of appellants as the assailants can hardly be doubted. He was not only an eyewitness to
the stabbing incident; he was also a direct victim thereof. The evidence shows that Jose had known the
appellants for a long time or since they were young (pp. 2-3 t.s.n.).

Adriano's defense that his actuations were constitutive of clearness of conscience and innocence is self-
serving and unbelievable. There is no plausible testimonial or documentary evidence in the record which
would in the least confer some semblance of truth on his negative assertion that he did not stab Pablito
Perocho. Certainly, such negative assertion cannot prevail over the positive testimony of Jose and the dying
declaration of the deceased Pablito to his brother Godofredo that said appellant stabbed Jose and Pablito. It
cannot be doubted that Pablito made such declaration under the consciousness of an impending death
because of the seriousness of the second wound inflicted on him by Adriano and of the fact that he died
shortly on the way to the hospital.

Likewise, the alibi stories of Emigdio and Silvestre are unworthy of credence. While Emigdio stated that he
ate supper at Jose Coquilla's house at 9:00 that fateful night, this was contradicted by the latter who testified
that supper was served at 7:00 p.m. (pp. 6, 7, 15, 16, t.s.n.). Moreover, witness Faustino Deganso testified
that while he was walking home after fishing at about 6:00 in the evening of November 29, 1981, he saw
the said Emigdio with two companions hiding behind the tree near the scene of the crime and that he was
able to identify Emigdio by means of a flashlight. (p. 5 Appellee's brief). The defense of alibi presented by
appellant Silvestre, besides being weak, cannot prevail over the positive Identification by Jose which
confirms his presence at the crime scene and his having stabbed Jose.

Being easily fabricated, the defense of alibi must be established by evidence clear and free from doubt and
bias (People v. Dimatulac, 122 SCRA 47). It may be credited only if established by convincing and
satisfactory proof (People v. Porcare, 120 SCRA 546).

Appellants point out to some alleged statements which are "substantially incompatible, and materially
contradictory" to the declarations of Jose, among them: (1) The Affidavit of Quiliano Butron (Exhibits "6",
"6-A" and "6-B"), stating that Jose told him that the person who stabbed him (Jose) is "one Hilario Espina"
(p. 7, Appellant's Brief); (2) witness Faustino Deganso's testimony that Jose told a group of 20 people that
"it was Emigdio Amoncio who stabbed him" (pp. 8-9, Id.); and (3) witness Amado Bagtasa's testimony that
Jose told him that instead of two, all herein three appellants stabbed him (pp. 9-10, Id.).

As correctly found by the trial court, the aforesaid "statements" have no probative value; first because
Quiliano, Butron was not presented in court to confirm his hearsay declaration contained in his affidavit:
second, Faustino Deganso's declaration was only a part of what he heard Jose tell to about 20 persons inside
the public market (pp. 20-22, t.s.n., Jan. 25, 1983); and third, Aniado Bagtasa's declaration that Jose told
him that instead of two, all herein three appellants stabbed him, was qualified in the later portion of his
testimony that Jose was just suspecting that Emigdio Amoncio was one of those who stabbed him (p. 8, tsn,
August 16, 1983).

It is well-settled that when the issue is one of credibility of witnesses, the trial court's findings are given
great weight on appeal, and We find no cogent reasons to disturb the same.

WHEREFORE, the judgment of conviction is hereby AFFIRMED, except that the indemnity of P12,000.00
for the heirs of Pablito Perocho is hereby increased to P30,000.00.

Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ.,concur.

126
People vs Gaddi
[G.R. No. 74065. February 27, 1989.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI Y CATUBAY, defendant-
appellant.
The Solicitor General for plaintiff-appellee.
Citizen Legal Assistance Office for defendant-appellant.
SYLLABUS
1. REMEDIAL LAW; CIRCUMSTANTIAL EVIDENCE; QUANTUM OF PROOF NECESSARY
TO SATISFY CONVICTION. — Where the conviction of an accused is based merely on circumstantial
evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one
circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the
Revised Rules of Court People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People
v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been
formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is
required is that the circumstances proved must be consistent with each other, consistent with the hypothesis
that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilt.
2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; ASSESSMENT OF TRIAL COURT
GENERALLY GIVEN GREAT WEIGHT AND RESPECT. — As a rule, the trial court's assessment of the
credibility of the prosecution witnesses is entitled to great weight and respect since it has the advantage of
observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is
telling the truth or not.
3. ID.; ID.; ID.; CONFESSION OF A PERSON TO THE COMMISSION OF A CRIME, NOT
VIOLATIVE OF THE HEARSAY RULE; EXCEPTION. — This Tribunal had previously declared that a
confession constitutes evidence of high order since it is supported by the strong presumption that no person
of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his
conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-
32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be
presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of
Court] which only prohibits a witness from testifying as to those facts which he merely learned from other
persons but not as to those facts which he "knows of his own knowledge; that is, which are derived from
his own perception." Hence, while the testimony of a witness regarding the statement made by another
person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it
is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the
statement was made or the tenor of such statement.
4. ID.; ID.; ID.; ALIBI, INHERENTLY A WEAK DEFENSE, REQUIRED TEST TO OVERCOME
EVIDENCE OF THE PROSECUTION. — It has been ruled time and again that courts look upon the
evidence of alibi with suspicion and always receive it with caution not only because it is inherently weak
and unreliable but also because of its easy fabrication. To overcome the evidence of the prosecution, an
alibi must satisfy the test of "full, clear and satisfactory evidence" This test requires not only proof that the
accused was somewhere else other than the scene of the crime but clear and convincing proof of physical
impossibility for the accused to have been at the place of the commission of the crime.
5. ID.; ID.; CONVICTION OF ACCUSED MAY BE SUSTAINED INDEPENDENTLY OF THE
EXTRA-JUDICIAL CONFESSION. — As the culpability of the accused has been established beyond
reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of
appellant's extrajudicial confession. His conviction can be sustained independently of said confession.
6. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT
PREMEDITATION, NOT APPRECIATED. — In the absence of proof as to how the victim was killed, the
aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The
killing must be considered as homicide only and not murder since the circumstance qualifying the killing
must be proven as indubitably as the killing itself.
7. ID.; CRIME COMMITTED IS HOMICIDE NOT MURDER ABSENT ANY AGGRAVATING
CIRCUMSTANCE; PENALTY IMPOSABLE. — As the evidence on record does not disclose the
existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only
HOMICIDE and not murder. Since there are neither mitigating nor aggravating circumstances, the penalty

127
for homicide which is reclusion temporal should be imposed in its medium period. Applying the
Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of
prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum.
8. CIVIL LAW; DAMAGES; AWARD THEREOF REDUCED ACCORDINGLY. — Absent any
proof of actual damages, the heirs of Augusto Esguerra are entitled only to the indemnity of P30,000.00.
Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly.
DECISION
CORTES, J p:
Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an
information which reads as follows:
xxx xxx xxx
That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-
named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident
premeditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there
stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting
upon him serious and mortal wounds which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of the offended party in such amount as may be awarded under the
provision of the Civil Code.
CONTRARY TO LAW. [Rollo, p. 15.]
After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch
104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the
decretal portion of which reads:
xxx xxx xxx
WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt
of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of
RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay the heirs of Augusto Esguerra the sum
of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties
provided for by law, and to pay the costs.
SO ORDERED. [Rollo, p. 31.]
On appeal to this Court, Gaddi assigns as errors of the trial court the following:
I
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF
ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE
DEFENSE.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS
WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE.
III
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF
TREACHERY AND EVIDENT PREMEDITATION [Rollo, p. 38.]
The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat. Arturo
Angeles, Cpl. Rogelio Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the
accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as
follows:
xxx xxx xxx
At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City,
Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning
of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner
Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police.
After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2,
1982; pp. 2-8. tsn, August 9, 1983).
At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and
Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant

128
told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca
arrived. Appellant himself led the policeman and Barangay residents to where the body was — in a toilet
pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the
body. The body of the victim was identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's
brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto
Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the
cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984).
A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where
the body of the victim was dug out. The T-shirt and shorts were identified by Ernesto Guzman as those
worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2,
1982). A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. (p.
6, tsn, July 14, 1983). Brief for the Appellee, pp. 35; Rollo, p. 52.] LLphil
On the other hand, the defense's version of the facts are as follows:
Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at
around 2:00 to 5:00 p.m., he was drinking with Augusto Esguerra (Bong Kuleleng) near the house of
Ernesto Guzman. At about 5:00 p.m., he was requested by Ernesto Guzman to buy gin. He left Ernesto
Guzman and Augusto Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby
store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before
returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the
place where they had been drinking and Augusto Esguerra, alias Bong Kuleleng was not there anymore. He
inquired from Ernesto Guzman the whereabouts of Augusto Esguerra and was told that the latter "went
home already." He then asked Guzman about the blood and was told that it was the blood stain of a
"butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of
Augusto Esguerra. Guzman narrated to him that Bong Kuleleng (Augusto Esguerra) held his rooster by the
neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to
the authorities. Guzman likewise requested him to admit the killing but he refused. While in the house,
Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When
brought to the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August
20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]
The Court finds the instant appeal unmeritorious.
Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is
essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from
which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court; People
v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-
38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of
circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances
proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at
the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R No. L-
14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132 September 26, 1964, 12
SCRA 9.]
In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum
of proof necessary to uphold a judgment of conviction. The following circumstances proven by the
prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto
Esguerra.
1. The fact that said victim was last seen on the day he was killed in the company of the accused,
drinking gin at the back of the house of Ernesto Guzman [TSN, August 9, 1983, p. 1.]
2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted
to Ernesto Guzman that he stabbed his drinking companion and that the latter was "nadisgrasya niya" so he
dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman
[TSN. August 9, 1983, p. 7.]
3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the
Northern Police District by the barangay people who apprehended him, he admitted the truth of the charge
of the barangay residents that he killed someone and that he dumped the body of the victim in a place being
dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the

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barangay people started digging for the body of the victim, the appellant was even instructing them as to
the exact location where the body was buried [TSN, August 24, 1983, p. 6.]
4. The fact that the place where he led the police officers and the barangay residents, i.e. the toilet pit
in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the
victim was found there after the digging [TSN, January 3, 1984, p. 5.]
5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were
later recovered from the place where the victim was buried [TSN, September 2, 1982, p.3.]
Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a
basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses
is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859-60, February 20, 1986, 141
SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has
the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern
if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA
495.]
Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him
cannot be given credence for being hearsay is unavailing. This Tribunal had previously declared that a
confession constitutes evidence of high order since it is supported by the strong presumption that no person
of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his
conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda, G.R. No. L-
32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be
presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of
Court] which only prohibits a witness from testifying as to those facts which he merely learned from other
persons but not as to those facts which he "knows of his own knowledge; that is, which are derived from
his own perception." Hence, while the testimony of a witness regarding the statement made by another
person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it
is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the
statement was made or the tenor of such statement [People v. Cusi, Jr., G.R. No. L-20986, August 14,
1965, 14 SCRA 944.] Here, when Guzman testified that the appellant, who probably was bothered by his
conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying
to a fact which he knows of his own personal knowledge; that is, he was testifying to the fact that the
appellant told him that he stabbed Augusto Esguerra and not to the truth of the appellant's statement.
That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People
v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 431] which upheld the trial court's reliance on an
extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary
farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the
instant case: LibLex
"The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in
evidence against him" (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be
also regarded as part of the res gestae.
The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to
testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not
be repeated verbatim, but in such a case it must be given in its substance." (23 C.J.S. 196.)
"Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who
testifies that he was present, heard, understood, and remembers the substance of the conversation or
statement made by the accused" [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551]
[at pp. 436-437.]
The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the
community as a member of a religious movement participating in such activities as "mañanita" and
procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left
his house where appellant and his companion, Esguerra, were still drinking and went to the house of Junior
Isla to attend a "mañanita" and participate in the weekly activity of bringing down the crucifix and the
image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was
actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony
[People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the
evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of

130
generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives
in Quezon City [TSN, August 9, 1983, p. 14.]
As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant,
credence should be given to their narration of how the appellant was apprehended and how he led the
police and the barangay residents to the place where he dumped the body of his victim since those police
officers are presumed to have performed their duties in a regular manner in the absence of evidence to the
contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon,
G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30,
1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30, 1987, 149 SCRA 464.].
Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi.
It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v.
Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939);
People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also
because of its easy fabrication [People v. Rafallo, 86 Phil 22 (1950).] To overcome the evidence of the
prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil.
631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil. 828 (1917).] This test requires not
only proof that the accused was somewhere else other than the scene of the crime but clear and convincing
proof of physical impossibility for the accused to have been at the place of the commission of the crime
[People v. Pacis, G.R. Nos. L-32957-58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No.
68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA
113.]
The testimony of the accused himself belies any claim of physical impossibility for him to be at the scene
of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200
meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with
an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to
buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was
not impossible for him to have committed the crime since Guzman and his wife left appellant alone with
the victim at around 6:00 o'clock in the evening to attend the mañanita at the house of Junior Isla. Thus, his
statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the
crime, cast serious doubt on the veracity of his alibi.
As the culpability of the accused has been established beyond reasonable doubt by the evidence of the
prosecution, there is no need to dwell on the admissibility of appellant's extrajudicial confession [Exh. F to
F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession. cdrep
However, in the absence of proof as to how the victim was killed, the aggravating circumstances of
treachery and evident premeditation cannot be properly appreciated. The killing must be considered as
homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably
as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This
Tribunal clearly pointed out in a previous case that
As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the
prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by
appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere
presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is
required before any conclusion may be reached respecting the attendance of alevosia [People v. Duero, G.R
No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied.]
Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of
1. the time when the offender determined to commit the crime;
2. an act manifestly indicating that the culprit clung to his determination; and
3. a sufficient laspe of time between the determination an d the execution to allow him to reflect
upon the consequences of his act [People v. Diva, GR. No. L-22946, October 11, 1968, 25 SCRA 468;
People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.].
As the evidence on record does not disclose the existence of treachery and evident premeditation in the
stabbing of the victim, the crime committed is only HOMICIDE and not murder. Since there are neither
mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be
imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable

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penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum.
Absent any proof of actual damages, the heirs of Augusto Esguerra are entitled only to the indemnity of
P30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly.
WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty
beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of
eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months
of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of
P30,000.00.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

XIX People vs Viovicente

[G.R. No. 118707. February 2, 1998.]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO VIOVICENTE y GONDESA,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYNOPSIS
Accused-appellant Fernando Viovicente, together with John Doe, Peter Doe and Mike Doe, was charged
with murder of one Fernando Hoyohoy in the Regional Trial Court of Quezon City. After trial on the
merits, the court a quo convicted herein accused-appellant of murder and sentenced him to 17 years, 4
months and 1 day of reclusion temporal as minimum; to 20 years of reclusion temporal as maximum, and
ordered him to pay the heirs P9,000.00 as burial expenses and P50,000.00 moral damages. On appeal, the
Court of Appeals thought the penalty should be increased to reclusion perpetua because of the absence of
mitigating and aggravating circumstances and, in accordance with Rule 124, Sec. 13, certified the case to
the Supreme Court. In his brief, accused-appellant contends that the court a quo erred in giving weight and
credence to the testimonies of the prosecution witnesses. Moreover, appellant stressed that the trial court
erred in relying on the ante mortem statement of the deceased because it was not in writing. EAIaHD
The Supreme Court ruled that the Revised Rules on Evidence do not require that a dying declaration must
be made in writing to be admissible. Instead, Rule 130, Section 37 thereof simply requires for admissibility
of an ante mortem statement that (a) it must concern the crime and the surrounding circumstances of the
declarant's death; (b) at the time it was made, the declarant was under a consciousness of impending death;
(c) the declarant was competent as a witness; and (d) the declaration was offered in a criminal case for
homicide, murder, or parricide in which the decedent was the victim. These requisites have been met in this
case. On the issue of the credibility of the testimonies of the prosecution witnesses, the Court ruled that the
positive identification of accused-appellant by a prosecution eyewitness should be given greater credence
than the appellant's bare and self-serving denials. It is settled that alibi cannot prevail against the positive
identification of the appellant. In view thereof, the challenged decision is affirmed, with the modification
that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua. aDCIHE
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY OF DYING DECLARATION; REVISED
RULES ON EVIDENCE DO NOT REQUIRE THAT A DYING DECLARATION MUST BE MADE IN
WRITING TO BE ADMISSIBLE; CASE AT BAR. — The Revised Rules on Evidence do not require that
a dying declaration must be made in writing to be admissible. Indeed, to impose such a requirement would
be to exclude many a statement from a victim in extremis for want of paper and pen at the critical moment.
Instead Rule 130, §37 simply requires for admissibility of an ante mortem statement that (a) it must
concern the crime and the surrounding circumstances of the declarants death; (b) at the time it was made,
the declarant was under a consciousness of impending death; (c) the declarant was competent as a witness;
and (d) the declaration was offered in a criminal case for homicide, murder, or parricide in which the
decedent was the victim. These requisites have been met in this case. First, Fernando Hoyohoy's statement
to his brother Tomas concerns his death as the same refers to the identity of his assailants. Second, he made
the declaration under consciousness of an impending death considering the gravity of his wounds which in
fact caused his death several hours later. Third, Fernando Hoyohoy was competent to testify in court. And

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fourth, his dying declaration was offered in a criminal prosecution for murder where he himself was the
victim. aDCIHE
2. ID.; ID.; CREDIBILITY OF WITNESS; TRIAL COURT'S FINDING AS TO THE VICTIM'S
TESTIMONY IS ENTITLED TO GREAT RESPECT; CASE AT BAR. — Accused-appellant claims that
Flores was biased, being a neighbor of the deceased. But so were the Viovicentes and Romero Obando his
neighbors. No ill motive on his part that would impel Flores to testify falsely against accused-appellant has
been shown. Consequently, the trial courts finding as to his testimony is entitled to great respect. Indeed
unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might
affect the result of the case, his assessment of the credibility of witnesses must be respected. Flores' positive
identification of accused-appellant should be given greater credence than the latter's bare and self-serving
denials.
3. ID.; ID.; DEFENSE OF ALIBI; CANNOT PREVAIL AGAINST POSITIVE IDENTIFICATION
OF THE ACCUSED. — The evidence unequivocally showing accused-appellant as among those who
conspired to kill Fernando Hoyohoy is dispositive of his defense that he was in Bataan on the day of the
crime. It is settled that alibi cannot prevail against positive identification of the accused. In addition,
accused-appellant's defense is weakened by the inconsistencies between his testimony and his mother's.
Accused-appellant testified that he departed for Bataan on a Sunday (July 21, 1991) at past 8:00 in the
morning with his cousin Lucring, taking a ride in the car of his employer. But his mother testified that
accused-appellant and Lucring left for Bataan at noontime on July 18, 1991 and they left by bus. DHSCEc
4. CRIMINAL LAW; REVISED PENAL CODE; MURDER; PENALTY; IN THE ABSENCE OF
MITIGATING AND AGGRAVATING CIRCUMSTANCES, THE PENALTY SHOULD BE
RECLUSION PERPETUA. — The Court of Appeals correctly held accused-appellant guilty of murder and
since there was neither mitigating nor aggravating circumstance, the penalty should be reclusion perpetua.
No reason was really given by the trial court for meting out on accused-appellant the penalty of 17 years, 4
months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum.
5. ID.; ID.; ID.; CIVIL INDEMNITY; P50,000.00 FOR THE DEATH OF THE VICTIM. — The
award of the damages made by the trial court, as affirmed by the Court of Appeals, must be revised. In
addition to the amount of P9,000.00 for burial expenses, which should be treated as actual damages, and the
amount of P50,000.00 as moral damages, accused-appellant must be made to pay indemnity in the amount
of P50,000.00. TAIEcS
DECISION
MENDOZA, J p:
In an information dated August 8, 1991 accused-appellant Fernando Viovicente y Gondesa, together with
John Doe, Peter Doe, and Mike Doe, was charged with murder, as follows: 1
That on or about the 21st day of July, 1991, in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a bolo and an icepick, conspiring together,
confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and
feloniously with intent to kill, with treachery and evident premeditation and by taking advantage of
superior strength, attack, assault and employ personal violence upon the person of FERNANDO
HOYOHOY Y VENTURA, by then and there, stabbing him on the chest with the use of said bolo and
icepick, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause
of his untimely death, to the damage and prejudice of the heirs of said Fernando Hoyohoy y Ventura, in
such amount as may be awarded under the provisions of the Civil Code. cdtai
CONTRARY TO LAW.
Fernando Flores testified that while he was on his way to work at 6 a.m. on July 21, 1991, he saw his co-
worker Fernando Hoyohoy attacked by four men. Hoyohoy was buying cigarettes at a store located in an
alley of Tatalon Street, Quezon City when, according to Flores, two persons emerged from behind the
store. Flores identified the two as accused-appellant Fernando Viovicente, alias "Macoy," and one
"Balweg." The two approached the victim and seized him by the shoulders (accused-appellant held the
victim's right shoulder, while "Balweg" held him by the left). Then, Flores said, two other persons, whom
he identified as Maning and Duras, came up to the victim and stabbed him in the left side of the chest. The
victim was struck first by Maning with a bolo, followed by Duras who stabbed Hoyohoy with an icepick. 2
The four then fled from the scene.
During the whole incident, Fernando Flores was ten steps away from the victim. 3 Flores testified that he
knew accused-appellant because both of them had worked in a department store in Sta. Mesa. 4 He said

133
that two weeks after the incident, his sister saw accused-appellant in their neighborhood and told him. The
two of them then informed the victim's brother who then tried to apprehend accused-appellant. Accused-
appellant resisted and drew his knife, but neighbors joined in subduing him. Later, they turned him over to
the barangay captain. 5 On August 6, 1991, Flores gave a statement regarding the incident to the police. 6
Tomas Hoyohoy, the victim's brother, testified 7 that after Fernando had been stabbed he ran to their house
and identified Maning Viovicente, Duras Viovicente, accused-appellant Fernando "Macoy" Viovicente, and
Romero "Balweg" Obando as his assailants. The four were neighbors of theirs in Tatalon.
Fernando Hoyohoy was taken to the National Orthopedic Hospital where he died at 11 a.m. of the same day
(July 21, 1991). A death certificate 8 and certificate of postmortem examination 9 were later issued. For the
victim's funeral, the family incurred P9,000.00 in expenses. 10
Cpl. Iluminado Combalicer of the Galas Police Sub-Station 4 testified 11 that, upon receipt of the report of
the incident, he went to the National Orthopedic Hospital where he was able to talk to the victim. This was
at 8 a.m. of July 21, 1991. Hoyohoy told him that he had been stabbed by Maning. Cpl. Combalicer took
down the victim's statement and made him sign it. 12 The pertinent portion of the statement reads:
Tanong:
Anong pangalan mo?
Sagot:
Fernando Hoyohoy y Ventura, 25 taong gulang, binata, empleyado, tubo sa Manila, nakatira sa No. 11,
Bicol Brigade, Tatalon, Q.C.
02 T: Bakit ka narito sa hospital?
S: Sinaksak po ako ni "Maning" at "Duras" roon ring nakatira sa may likod ng bahay namin.
03 T: Anong dahilan at ikaw ay sinaksak?
S: Hindi ko po alam.
Accused-appellant's defense was alibi. 13 He claimed that on July 21, 1991, the day of the incident, he was
in Bataan. According to him, two weeks later he returned to Manila because he did not like his job in
Bataan. He went to his mother's house and, after eating, went to the house of his cousins, Maning and
Duras. It was there where he was arrested. Accused-appellant's mother, Filomena Canlas, corroborated his
alibi. 14
The Regional Trial Court of Quezon City (Branch 92) 15 convicted accused-appellant of murder and
sentenced him to 17 years, 4 months, and 1 day of reclusion temporal, as minimum, to 20 years of reclusion
temporal, as maximum, and ordered him to pay the heirs P9,000.00 as burial expenses, P50,000.00 moral
damages, and the costs. On appeal, the Court of Appeals 16 thought the penalty should be increased to
reclusion perpetua because of the absence of mitigating and aggravating circumstances and, in accordance
with Rule 124, §13, certified the case to this Court for final review. The Court gave accused-appellant the
opportunity of filing an additional appellant's brief but he found it unnecessary to do so. The case was
therefore submitted for resolution on the basis of the briefs of the parties in the Court of Appeals and the
record of the trial court.
Accused-appellant's brief contains the following assignment of errors:
I
THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF
THE PROSECUTION WITNESSES AND IN DISREGARDING THE THEORY OF THE DEFENSE.
II
THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT FERNANDO VIOVICENTE
GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED DESPITE OF THE
FAILURE OF THE VICTIM FERNANDO HOYOHOY TO IDENTIFY ACCUSED-APPELLANT AS
ONE OF THE ASSAILANTS IN HIS ANTE-MORTEM STATEMENT HE HAD GIVEN TO THE
POLICE INVESTIGATOR AT THE HOSPITAL.
First, Accused-appellant contends that it was error for the trial court to rely on the ante mortem statement of
the deceased which he gave to his brother Tomas, in which the deceased pointed to accused-appellant and
Balweg as his assailants. He argues that the alleged declaration cannot be considered a dying declaration
under Rule 130, §37 of the Rules on Evidence because it was not in writing and it was not immediately
reported by Tomas Hoyohoy to the authorities. Instead, according to accused-appellant, the trial court
should have considered the statement (Exh. F) given by the victim to Cpl. Combalicer also on the day of
the incident, July 21, 1991. In that statement, the victim pointed to the brothers Maning Viovicente and
Duras Viovicente as his assailants. This contention is without merit. The Revised Rules on Evidence do not

134
require that a dying declaration must be made in writing to be admissible. Indeed, to impose such a
requirement would be to exclude many a statement from a victim in extremis for want of paper and pen at
the critical moment. Instead Rule 130, §37 17 simply requires for admissibility of an ante mortem
statement that (a) it must concern the crime and the surrounding circumstances of the declarant's death; (b)
at the time it was made, the declarant was under a consciousness of impending death; (c) the declarant was
competent as a witness; and (d) the declaration was offered in a criminal case for homicide, murder, or
parricide in which the decedent was the victim. 18 These requisites have been met in this case. First,
Fernando Hoyohoy's statement to his brother Tomas concerns his death as the same refers to the identity of
his assailants. Second, he made the declaration under consciousness of an impending death considering the
gravity of his wounds which in fact caused his death several hours later. Third, Fernando Hoyohoy was
competent to testify in court. And fourth, his dying declaration was offered in a criminal prosecution for
murder where he himself was the victim.
Nor is there merit in the contention that because Tomas Hoyohoy, to whom the alleged ante mortem
statement was given, reported it to the police on August 5, 1991, after accused-appellant had been arrested,
it should be treated as suspect. Delay in making a criminal accusation however does not necessarily impair
a witness' credibility if such delay is satisfactorily explained. 19 Tomas testified that he knew Cpl.
Combalicer had talked to his brother Fernando at the hospital 20 implying that he did not then make a
statement because the matter was under investigation. llcd
Second. Actually, the trial court's decision is anchored mainly on the testimony of Fernando Flores. Flores
was an eyewitness to the killing of Fernando Hoyohoy. This witness pointed to accused-appellant and to
three others (Balweg, Maning Viovicente, and Duras Viovicente) as the assailants, describing the part each
played in the slaying of Fernando Hoyohoy. Flores testified:
FISCAL REYES:
Q While you were along that Alley at Tatalon, Quezon City, what happened if any, Mr. Witness?
A I saw Fernando Hoyohoy buying cigarette.
Q What happened while he was buying cigarette?
A Four (4) persons went near him while he was buying cigarette and two (2) held him by the hand.
Q Mr. witness you said that Fernando Hoyohoy at the time was buying cigarette where was he facing
at the time?
A He was facing the store.
Q How far were you from Fernando Hoyohoy?
A Ten (10) steps away.
Q You said that four (4) persons appeared and two (2) held Fernando Hoyohoy by the shoulder, from
where did these two (2) come from?
A The two (2) persons came behind the store.
Q Who held Hoyohoy by the right shoulder if you know, Mr. witness?
A Fernando Viovicente and Alias Balweg.
Q Only the right shoulder?
A Yes, Ma'am.
Q I am asking you the right shoulder?
A Fernando Viovicente.
Q And who held Hoyohoy's left shoulder?
A Alias Balweg.
Q Do you know the complete name of Alias Balweg?
A No, Ma'am, I do not know.
Q How about the other two (2) what did these two (2) persons do to Fernando Hoyohoy at the time?
LLphil
A They were the ones who stabbed Fernando Hoyohoy.
Q What were the names of the two (2) persons who stabbed Fernando Hoyohoy?
A Maning and Duras.
Q Do you know the full name of these two (2) persons?
A No, Ma'am.
Q What was Maning holding at the time?
A A bolo, Ma'am,
Q What was Duras holding?

135
A Icepick.
Q Where did Maning stab the victim Fernando Hoyohoy?
A At the left chest.
Q Who stabbed first, Mr. witness?
A Maning.
Q And what did Duras do?
A He helped stabbed Fernando Hoyohoy.
Q With what weapon?
A Icepick.
Q You said that Fernando Viovicente was the one who held Fernando Hoyohoy by the right shoulder
is that correct?
A Yes, Ma'am.
Q Is that Viovicente the same Viovicente who is now the accused in this Court?
A Yes, Ma'am,
Q Will you please look around and if he is around please point at him, Mr. witness?
A Witness pointing to a person who identified himself as Fernando Viovicente.
Q Mr. witness you mentioned that these Duras and Maning were brothers, is it not?
A Yes, Ma'am.
Q Do you know at least their family name?
A Viovicente.
Q Where are they residing if you know, Mr. witness?
A They are living with their sisters.
Q Is Fernando Viovicente the one whom you pointed in this courtroom a brother of Maning and
Duras?
A No Ma'am.
Q How many stabs did Fernando Hoyohoy receive from these two persons?
A Two (2) stab wounds.
Q How many from Maning?
A One (1) stab.
Q. How about from Duras?
A One, Ma'am.
Q What happened after these two (2) persons Maning and Duras stabbed Fernando Hoyohoy?
A They ran away. 20
Accused-appellant claims that Flores was biased, being a neighbor of the deceased. But so were the
Viovicentes and Romero Obando his neighbors. No ill motive on his part that would impel Flores to testify
falsely against accused-appellant has been shown. Consequently, the trial court's finding as to his testimony
is entitled to great respect. Indeed unless the trial judge plainly overlooked certain facts of substance and
value which, if considered, might affect the result of the case, his assessment of the credibility of witnesses
must be respected. 21 Flores' positive identification of accused-appellant should be given greater credence
than the latter's bare and self-serving denials. 22
Third. The foregoing evidence unequivocally showing accused-appellant as among those who conspired to
kill Fernando Hoyohoy is dispositive of his defense that he was in Bataan on the day of the crime. It is
settled that alibi cannot prevail against positive identification of the accused. In addition, accused-
appellant's defense is weakened by the inconsistencies between his testimony and his mother's. Accused-
appellant testified that he departed for Bataan on a Sunday (July 21, 1991) at past 8:00 in the morning with
his cousin Lucring, taking a ride in the car of his employer. 23 But his mother testified that accused-
appellant and Lucring left for Bataan at noontime on July 18, 1991 and they left by bus. 24
The Court of Appeals correctly held accused-appellant guilty of murder and since there was neither
mitigating nor aggravating circumstance, the penalty should be reclusion perpetua. No reason was really
given by the trial court for meting out on accused-appellant the penalty of 17 years, 4 months, and 1 day of
reclusion temporal, as minimum, to 20 years of reclusion temporal, as maximum. However, the award of
the damages made by the trial court, as affirmed by the Court of Appeals, must be revised. In addition to
the amount of P9,000.00 for burial expenses, which should be treated as actual damages, and the amount of
P50,000.00 as moral damages, accused-appellant must be made to pay indemnity in the amount of
P50,000.00. 25

136
WHEREFORE, the decision appealed from is AFFIRMED with the modification that accused-appellant is
sentenced to suffer the penalty of reclusion perpetua and ordered to pay to the heirs of Fernando Hoyohoy
the sum of P9,000.00, as actual damages, P50,000.00, as moral damages, and P50,000.00, as civil
indemnity for the death of Fernando Hoyohoy. LibLex
SO ORDERED.
Regalado, Melo, Puno and Martinez, JJ ., concur.

XX. Gotesco investment corporation vs chatto

GOTESCO INVESTMENT CORPORATION, petitioner, vs. GLORIA E. CHATTO and LINA DELZA
CHATTO, respondents.
Ceferino Padua Law Office for petitioner.
Bernardito A. Florido for private respondent.
SYLLABUS
1. REMEDIAL LAW; SUPREME COURT; APPELLATE JURISDICTION THEREOF; RULE
AND EXCEPTIONS. — The rule is well-settled that the jurisdiction of this Court in cases brought to it
from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings
of fact being conclusive, (Chan vs. Court of Appeals, 33 SCRA 373 [1970], citing a host of cases) except
only where a case is shown as coming under the accepted exceptions. (FNCB Finance vs. Estavillo, 192
SCRA 514 [1990])
2. CIVIL LAW; OBLIGATIONS; FORCE MAJEURE; DEFINED; CASE AT BAR. — In Pons y
Compañia vs. La Compañia Maritima, this Court held: "An examination of the Spanish and American
authorities concerning the meaning of force majeure shows that the jurisprudence of these two countries
practically agree upon the meaning of this phrase. Blackstone, in his Commentaries on English Law,
defines it as — 'Inevitable accident or casualty; an accident produced by any physical cause which is
irresistible; such as lightning, tempest, perils of the sea, inundation, or earthquake; the sudden illness or
death of a person.' (2 Blackstone's Commentaries, 122; Story on Bailments, sec. 25.) Escriche, in his
Diccionario de Legislaci"n y Jurisprudence, defines fuerza mayor as follows: 'The event which we could
neither foresee nor resist; as, for example, the lightning stroke, hail, inundation, hurricane, public enemy,
attack by robbers; Vis major est, says Cayo, ea quae consilio humano neque provideri neque vitari potest.
Accident and mitigating circumstances.' Bouvier defines the same as — 'Any accident due to natural
causes, directly, exclusively without human intervention, such as could not have been prevented by any
kind of oversight, pains, and care reasonably to have been expected.' (Law Reports, 1 Common Pleas
Division, 423; Law Reports, 10 Exchequer, 255.) Cockburn, chief justice, in a well-considered English case
(1 Common Pleas Division, 34, 432), said that where a captain — 'Uses all the known means to which
prudent and experienced captains ordinarily have recourse, he does all that can be reasonably required of
him; and if, under such circumstances, he is overpowered by storm or other natural agency, he is within the
rule which gives immunity from the effects of such vis major.' The term generally applies, broadly
speaking, to natural accidents, such as those caused by lightning, earthquake, tempests, public enemy, etc."
3. ID.; ID.; ID.; ID.; UNFOUNDED IN CASE AT BAR. — Petitioner's claim that the collapse of the
ceiling of the theater's balcony was due to force majeure is not even founded on facts because its own
witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling collapsed."
Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused by force
majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any explanation does
not imply force majeure.
4. ID.; ID.; ID.; IMPLIED WARRANTY OF OWNER OR PROPRIETOR OF A PLACE OF
PUBLIC AMUSEMENT; RULE; CASE AT BAR. — Petitioner could have easily discovered the cause of
the collapse if indeed it were due to force majeure. To Our mind, the real reason why Mr. Ong could not
explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is not an engineer, but an architect who had not even
passed the government's examination. Verily, the post-incident investigation cannot be considered as
material to the present proceedings. What is significant is the finding of the trial court, affirmed by the
respondent Court, that the collapse was due to construction defects. There was no evidence offered to
overturn this finding. The building was constructed barely four (4) years prior to the accident in question. It
was no shown that any of the causes denominated as force majeure obtained immediately before or at the

137
time of the collapse of the ceiling. Such defects could have been easily discovered if only petitioner
exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the
testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates of said inspection nor the
nature and extent of the same. That the structural designs and plans of the building were duly approved by
the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that
there were no defects in the construction, especially as regards the ceiling, considering that no testimony
was offered to prove that it was ever inspected at all. It is settled that: "The owner or proprietor of a place
of public amusement impliedly warrants that the premises, appliances and amusement devices are safe for
the purpose for which they are designed, the doctrine being subject to no other exception or qualification
than that he does not contract against unknown defects not discoverable by ordinary or reasonable means."
This implied warranty has given rise to the rule that: "Where a patron of a theater or other place of public
amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary course of events would not have
happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference
of negligence on the part of the defendant." That presumption or inference was not overcome by the
petitioner.
5. ID.; ID.; ID.; ID.; EXEMPTION FROM LIABILITY ON THE GROUND THEREOF; RULE. —
Even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the collapse was
due to force majeure, petitioner would still be liable because it was guilty of negligence, which the trial
court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation on force
majeure, for one to be exempt from any liability because of it, he must have exercised care, i.e., he should
not have been guilty of negligence.
6. REMEDIAL LAW; EVIDENCE; TESTIMONIAL EVIDENCE; HEARSAY RULE; NOT
APPLICABLE IN CASE AT BAR. — Turning now to the legal issue posed in this petition, the error lies
not in the disquisitions of the respondent Court, but in the sweeping conclusion of petitioner. We agree with
the respondent Court that petitioner offered no seasonable objection to the exhibits. More than this,
however, We note that the exhibits were admitted not as independent evidence, but, primarily, as part of the
testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main basis for the award of damages.
As to the latter, including the award for attorney's fees, the testimonial evidence presented is sufficient to
support the same; moreover, petitioner was not deprived of its right to test the truth or falsity of private
respondents' testimony through cross-examination or refute their claim by its own evidence. It could not
then be successfully argued by petitioner that the admission of the exhibits violated the hearsay rule. As
this Court sees it, the trial court admitted such merely as independently relevant statements, which was not
objectionable, for: "Where, regardless of the truth or the falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence of such a fact."
DECISION
DAVIDE, JR., J p:
Assailed in this petition for review under Rule 45 of the Rules of Court are both the Decision 1
promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of the respondent Court of
Appeals in C.A.-G.R. CV No. 09699 which, respectively affirmed in toto the decision of Branch XXI of the
Regional Trial Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus Gotesco
Investment Corporation", and denied petitioner's motion to reconsider the same.
The trial court ordered the defendant, herein petitioner, to pay the plaintiff Lina Delza E. Chatto the sum of
P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of P49,050.00 as actual and
consequential damages, P75,000.00 as moral damages and P20,000.00 as attorney's fees, plus the cost of
the suit. These awards, except for the attorney's fees, were to earn interest at the rate of twelve per cent
(12%) per annum beginning from the date the complaint was filed, 16 November 1982, until the amounts
were fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court, are summarized by
the latter in the challenged decision as follows:
"The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15-year old
daughter, plaintiff Lina Delza E. Chatto went to see the movie 'Mother Dear' at Superama I theater, owned

138
by defendant Gotesco Investment Corporation. They bought balcony tickets but even then were unable to
find seats considering the number of people patronizing the movie. Hardly ten (10) minutes after entering
the theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and pandemonium
ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were able to
get out to the street they walked to the nearby FEU Hospital where they were confined and treated for one
(1) day.
The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from
June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh.
"C") issued by Dr. Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:
Physical injuries:
Contusions:
forehead and drental region, scalp left with hematoma; chest anterior upper bilateral; back right, scapular
region; back, mid-portion, thoracolumbar regions, bilateral.
Abrasions:
back lumbar region, horizontal, across midline, from left to right; hand right, palm, near wrist; hand left,
index finger, dorsum, proximal phalanx.
Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar
region — All negative.
CONCLUSIONS:
1. Physical injuries noted on the subject.
2. That under normal condition in the absence of complication, said physical injuries will require
medical attendance and/or incapacitate the subject for a period of from two to four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate (Exh. "D") of Dr.
Brion are as follows:
xxx xxx xxx
Physical injuries:
Lacerated wounds:
scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;
Contusion, forearm right, anterior aspect, upper third,
Abrasions:
Shoulder and upper third, arm right, posterior aspect, linear; backright, scapular region, two in number,
linear; elbow right, posterior aspect; forearm right, anterior aspect, middle third.
Concusion (sic) cerebral.
X-Ray — Skull — Negative.
Cervical spines — Straightening of cervical spine, probably due to muscular spasm.
CONCLUSIONS:
1. Physical injuries noted on subject.
2. That under normal condition, in the absence of complication, said physical injuries will require
medical attendance and/or incapacitate the subject for a period of from two to four weeks.
Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for
further treatment (Exh. "E") She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in
the U.S. for about three (3) months during which time she had to return to the Cook County Hospital five
(5) or six (6) times.
Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to
force majeure. It maintained that its theater did not suffer from any structural or construction defect. (Exh.
1, 2, 3, 4, & 5)" 3
In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court said:
"It has been established thru the uncontradicted testimony of Mrs. Chatto that during the chaos and
confusion at the theater she lost a pair of earrings worth P2,500 and the sum of P1,000.00 in cash contained
in her wallet which was lost, and that she incurred the following expenses P500.00 as transportation fare
from Cebu City to Manila on the first leg of her trip to the United States, P350.00 for her passport, and
P46,978.00 for her expense relative to her treatment in the United States, including the cost of a round-trip
ticket (P11,798.00) hospital and medical bills and other attendant expenses. The total is P51,328.00, which
is more than the sum of P49,050.00 claimed in the complaint, hence should be reduced accordingly.

139
The same testimony has also established that Mrs. Chatto contracted to pay her counsel the sum of
P20,000.00 which this court considers reasonable considering, among other things, the professional
standing of work (sic) involved in the prosecution of this case. Such award of attorney's fees is proper
because the defendant's omission to provide the plaintiffs proper and adequate safeguard to life and limb
which they deserved as patrons to (sic) its theater had compelled the plaintiffs to hire the services of a
counsel, file this case and prosecute it, thus incurring expenses to protect their interest.
The plaintiffs are entitled to moral damages, which are the direct and proximate result of the defendant's
gross negligence and omission. Such moral damages include the plaintiffs' physical suffering, mental
anguish, fright and serious anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain,
anguish, fright and anxiety than her daughter Lina Delza, such damages are compounded by the presence of
permanent deformities on her body consisting of a 6-inch scar on the head and a 2-inch scar on one arm.
The court believes that the sum of P75,000.00 for plaintiff Gloria E. Chatto and the sum of P10,000.00 for
plaintiff Lina Delza E. Chatto would be reasonable." 4
Petitioner submitted before the respondent Court the following assignment of errors: LLjur
"I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE
PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO
PUBLIC DOCUMENTS AND CERTIFICATIONS OF THE CONDITION OF THE BUILDING,
PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE CITY ENGINEER'S
OFFICE OF MANILA.
II. THE LOWER COURT ERRED IN FINDING THAT 'THE CEILING OF THE BALCONY
COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR ARCHITECTURAL DEFECT,'
AND NOT DUE TO AN ACT OF GOD OR FORCE MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY
NEGLIGENT IN FAILING 'TO CAUSE PROPER AND ADEQUATE INSPECTION, MAINTENANCE
AND UPKEEP OF THE BUILDING.' " 5
In its decision, respondent Court found the appeal to be without merit. As to the first assigned error, it ruled
that the trial court did not err in admitting the exhibits in question in the light of the ruling in Abrenica vs.
Gonda 6 on waiver of objections arising out of failure to object at the proper time Thus:
"Exh "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the Administrator of UST
Hospital expressing their willingness to guaranty the payment of the hospital bills of the plaintiffs-appellees
was not objected to in trial court for lack of authentication. It is too late to raise that objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook County Hospital. It
may be true that the doctors who prepared them were not presented as witnesses. Nonetheless, the records
will show that counsel for defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the
matter especially the content of Exhibits "F" to "F-13". Consequently, defendant-appellant is estopped from
claiming lack of opportunity to verify their textual truth. Moreover, the record is full of the testimony of
plaintiffs-appellees on the injuries they sustained from the collapse of the ceiling of defendant-appellant's
theater. Their existence is crystal clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-appellee Gloria Chatto
from the Philippines to the U.S. (Manila-Chicago-Manila). Certainly" this is relevant evidence on whether
or not she actually travelled (sic) to the U.S. for further medical treatment. Defendant-appellant's contention
that the best evidence on the issue is her passport is off the mark. The best evidence rule applies only if the
contents of the writing are directly in issue. In any event, her passport is not the only evidence on the
matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatoo's (sic) expenses in the U.S. in her own
handwriting. Defendant-appellant's objection that it is self serving goes to the weight of the evidence. The
truth of Exh. "G" could be and should have been tested by cross examination. It cannot be denied however
that such expenses are within the personal knowledge of the witness.
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of her treatment in
the U.S. Defendant-appellant objects to its admission because it is self-serving. The objection is without
merit in view of the evidence on record that plaintiff-appellee Gloria Chatto sustained head injuries from
the collapse of the ceiling of defendant-appellant's theater. In fact, counsel for defendant-appellant cross
examined the said witness on the medical finding of Cook County Hospital that she was suffering from
neck muscle spasm. (TSN, April 17, 1984, p. 11) The wearing of a surgical neckwear has proper basis.
LLjur

140
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use of her surgical
neckwear. Defendant-appellant objects to this exhibit as hearsay because the photographer was not
presented as a witness. The objection is incorrect. In order that photographs or pictures may be given in
evidence, they must be shown to be a true and faithful representation of the place or objects to which they
refer. The photographs may be verified either by the photographer who took it or by any person who is
acquainted with the object represented and testify (sic) that the photograph faithfully represents the object.
(Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80 citing New York Co. vs. Moore, 105 Fed.
725) In the case at bar, Exh. "I" was identified by plaintiff appellee Gloria Chatto." 7
As to the other assigned errors, the respondent Court ruled:
"The lower court did not also err in its finding that the collapse of the ceiling of the theater's balcony was
due to construction defects and not to force majeure. It was the burden of defendant-appellant to prove that
its theater did not suffer from any structural defect when it was built and that it has been well maintained
when the incident occurred (sic). This is its Special and Affirmative Defense and it is incumbent on
defendant-appellant to prove it. Considering the collapse of the ceiling of its theater's balcony barely four
(4) years after its construction, it behooved defendant-appellant to conduct an exhaustive study of the
reason for the tragic incident On this score, the effort of defendant-appellant borders criminal nonchalance.
Its witness Jesus Lim Ong testified:
'Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of engineer and architect used to make
round inspection of the building under your construction One of these buildings is Gotesco Cinema 1 and 2,
subject matter of this case, and you also made a regular round up or inspection of the theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinerama 1 and 2, had you any chance to inspect this building?
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember that one of these theaters.
Atty. Barcelona:
continuing particularly Superama 1, the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
Q What was your finding?
A There was really nothing, I cannot explain. I could not give any reason why the ceiling collapsed.
Q Could it not be due to any defect of the plan?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:
Q When that incident happened, did the owner Gotesco Investment Corporation went (sic) to you to
call your attention?
A Yes, sir.
Atty. Florido.
Your Honor, we noticed. (sic) series of leading questions, but this time we object.
COURT:
Sustained.
Atty. Barcelona:
Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that one of the
cinemas you maintained collapsed?
A He asked for a thorough investigation.
Q And as a matter of fact he asked you to investigate?
A Yes, Sir.

141
Q Did you come out with any investigation report?
A There was nothing to report.'
Clearly, there was no authoritative investigation conducted by impartial civil and structural engineers on
the cause of the collapse of the theater's ceiling. Jesus Lim Ong is not an engineer, he is a graduate of
architecture from the St. Louie (sic) University in Baguio City. It does not appear he has passed the
government examination for architects. (TSN, June 14, 1985, p. 4) In fine, the ignorance of Mr. Ong about
the cause of the collapse of the ceiling of their theater cannot be equated as an act of God. To sustain that
proposition is to introduce sacrilege in our jurisprudence." 8
Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed
this petition assailing therein the challenged decision on the following grounds:
"1. The basis of the award for damages stems from medical reports issued by private physicians of
local hospitals without benefit of cross-examination and more seriously, xerox copies of medical findings
issued by American doctors in the United States without the production of originals, without the required
consular authentication for foreign documents, and without the opportunity for cross-examination.
2. The damage award in favor of respondents is principally made to depend on such unreliable,
hearsay and incompetent evidence for which an award of more than P150,000.00 in alleged actual, moral
and 'consequential' damages are awarded to the prejudice of the right of petitioner to due process . . .
3. Unfortunately, petitioner's evidence of due diligence in the care and maintenance of the building
was not seriously considered by the Court of Appeals, considering that frequent inspections and
maintenance precautions had to be observed by hired engineers of petitioner, which enjoys an unsullied
reputation in the business of exhibiting movies in a chain of movie-houses in Metro Manila." 9
After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this Court
resolved to give due course to the petition and required the parties to file their respective memoranda.
Subsequently, private respondents, in a motion, prayed for leave to adopt their Comment as their
Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum on 10
January 1990. cdphil
The petition presents both factual and legal issues. The first relates to the cause of the collapse of the
ceiling while the latter involves the correctness of the admission of the exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it from this Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive, 10
except only where a case is shown as coming under the accepted exceptions. 11 None of the exceptions
which this Court has painstakingly summarized in several cases 12 has been shown to exist in this
petition. Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to force majeure
is not even founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give
any reason why the ceiling collapsed." Having interposed it as a defense, it had the burden to prove that the
collapse was indeed caused by force majeure. It could not have collapsed without a cause. That Mr. Ong
could not offer any explanation does not imply force majeure. As early as eighty-five (85) years ago, this
Court had the occasion to define force majeure. In Pons y Compañia vs. La Compañia Maritima, 13 this
Court held:
"An examination of the Spanish and American authorities concerning the meaning of force majeure shows
that the jurisprudence of these two countries practically agree upon the meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as —
'Inevitable accident or casualty; an accident produced by any physical cause which is irresistible; such as
lightning, tempest, perils of the sea, inundation, or earthquake; the sudden illness or death of a person.' (2
Blackstone's Commentaries, 122; Story on Bailments, sec. 25.)
Escriche, in his Diccionario de Legislacion y Jurisprudence, defines fuerza mayor as follows:
'The event which we could neither foresee nor resist; as, for example, the lightning stroke, hail, inundation,
hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae consilio humano neque
provideri neque vitari potest. Accident and mitigating circumstances.'
Bouvier defines the same as —
'Any accident due to natural causes, directly, exclusively without human intervention, such as could not
have been prevented by any kind of oversight, pains, and care reasonably to have been expected.' (Law
Reports, 1 Common Pleas Division, 423; Law Reports, 10 Exchequer, 255.)

142
Cockburn, chief justice, in a well-considered English case (1 Common Pleas Division, 34, 432), said that
where a captain —
'Uses all the known means to which prudent and experienced captains ordinarily have recourse, he does all
that can be reasonably required of him; and if, under such circumstances, he is overpowered by storm or
other natural agency, he is within the rule which gives immunity from the effects of such vis major.'
The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning,
earthquake, tempests, public enemy, etc."
Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To
Our mind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not
actually conduct the investigation or that he is, as the respondent Court impliedly held, incompetent. He is
not an engineer, but an architect who had not even passed the government's examination. Verily, the post-
incident investigation cannot be considered as material to the present proceedings. What is significant is the
finding of the trial court, affirmed by the respondent Court, that the collapse was due to construction
defects. There was no evidence offered to overturn this finding. The building was constructed barely four
(4) years prior to the accident in question. It was no shown that any of the causes denominated as force
majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have
been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the
premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises
before the date of the accident. His answers to the leading questions on inspection disclosed neither the
exact dates of said inspection nor the nature and extent of the same. That the structural designs and plans of
the building were duly approved by the City Engineer and the building permits and certificate of occupancy
were issued do not at all prove that there were no defects in the construction, especially as regards the
ceiling, considering that no testimony was offered to prove that it was ever inspected at all.
It is settled that:
"The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances
and amusement devices are safe for the purpose for which they are designed, the doctrine being subject to
no other exception or qualification than that he does not contract against unknown defects not discoverable
by ordinary or reasonable means." 14
This implied warranty has given rise to the rule that:
"Where a patron of a theater or other place of public amusement is injured, and the thing that caused the
injury is wholly and exclusively under the control and management of the defendant, and the accident is
such as in the ordinary course of events would not have happened if proper care had been exercised, its
occurrence raises a presumption or permits of an inference of negligence on the part of the defendant." 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the
collapse was due to force majeure, petitioner would still be liable because it was guilty of negligence,
which the trial court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's
elucidation on force majeure, for one to be exempt from any liability because of it, he must have exercised
care, i.e., he should not have been guilty of negligence.
Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the respondent
Court, but in the sweeping conclusion of petitioner. We agree with the respondent Court that petitioner
offered no seasonable objection to the exhibits. More than this, however, We note that the exhibits were
admitted not as independent evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto.
Neither were the exhibits made the main basis for the award of damages. As to the latter, including the
award for attorney's fees, the testimonial evidence presented is sufficient to support the same; moreover,
petitioner was not deprived of its right to test the truth or falsity of private respondents' testimony through
cross-examination or refute their claim by its own evidence. It could not then be successfully argued by
petitioner that the admission of the exhibits violated the hearsay rule. As this Court sees it, the trial court
admitted such merely as independently relevant statements, which was not objectionable, for:
"Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the
hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement
is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such a fact." 16
Furthermore, and with particular reference to the documents issued in the United States of America
(Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not that they are hearsay. In its

143
written comment and/or opposition to documentary exhibits, petitioner objected to their admission on the
following grounds only:
". . . for being incompetent evidence considering that the game were not duly authenticated by the
responsible consular and/or embassy officials authorized to authenticate the said documents." 17
All told, the instant petition is without merit.
WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against petitioner.
SO ORDERED.
Gutierrez, Jr, Feliciano, Bidin and Romero, JJ ., concur.
Section 42
XXI People vs Laquinon
G.R. No. L-45470. February 28, 1985.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO LAQUINON, alias "JOLLY",
defendant-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DYING DECLARATION; INADMISSIBLE AS SUCH
WHERE DECLARANT DID NOT BELIEVE HIMSELF IN EXTREMIS. — The dying declaration of the
deceased Pablo Remonde is not admissible as an ante-mortem declaration since the deceased was in doubt
as to whether he would die or not. The declaration fails to show that the deceased believed himself in
extremis, "at the point of death when every hope of recovery is extinct," which is the sole basis for
admitting this kind of declarations as an exception to the hearsay rule."
2. ID.; ID.; ID.; ADMITTED AS PART OF THE RES GESTAE. — It may be admitted, however, as
part of the res gestae since the statement was made immediately after the incident and the deceased Pablo
Remonde had no sufficient time to concoct a charge against the accused.
3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY, ATTENDANT WHEN
EMPLOYED AS A MEANS OF EXECUTION. — Accused is guilty beyond reasonable doubt of the
crime of murder qualified by treachery. The victim was apparently shot while his two hands were tied at his
back. Accused, in shooting the victim, obviously employed means or force in the execution of the offense
which tended directly and specially to insure its execution without risk to himself arising from the defense
which the offended party might make.

DECISION
CONCEPCION, JR., J p:
Accused Gregorio Laquinon was charged with the crime of murder in the Court of First Instance of Davao
del Sur for the killing of Pablo Remonde, committed as follows: LLjur
"That on or about November 13, 1972, in the Municipality of Hagonoy, Province of Davao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused, with treachery
and evident premeditation, armed with a gun and with intent to kill, did then and there wilfully, unlawfully
and feloniously shoot one Pablo Remonde with said weapon, inflicting upon the latter wounds which
caused his death."
After the trial, the lower Court rendered a decision finding the accused guilty of the crime charged and
sentenced him as follows:
"IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the
crime of murder, and imposes upon him the penalty of reclusion perpetua (Art. 248, Revised Penal Code);
to indemnify the heirs of the deceased in the sum of P12,000.00 and to pay the costs."
From the foregoing judgment, accused Gregorio Laquinon interposed the present appeal.
The People's version of the case is as follows:
"On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio captain of Clib,
Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short while he heard gunshots coming
from the bank of a river some three hundred meters to the south of his house (pp. 4-6, tsn, Dec. 8, 1975).
Then, his brother, Leocario Buat, arrived and told him that a man was shouting for help at the bank of the
river. Samama Buat told his brother to call the barrio councilman. Thereafter, he proceeded to the place
where the unidentified man was. His brother, Leocario and the barrio councilman also arrived there.
Samama Buat found the man lying on the sand and asked who he was. The man answered, 'I am Pablo
Remonde' (pp. 7-10, id.). Remonde's two hands were tied on his back. He was lying face down (p. 10, id.).

144
"Samama Buat then took the 'ante mortem' statement of Pablo Remonde. He asked him who he was to
which he answered that he was Pablo Remonde. Samama Buat asked 'who shot you' and Remonde said that
it was Gregorio Laquinon. He asked Pablo Remonde whether from the gunshot wounds he suffered he
would survive to which the victim answered 'I do not know' (pp. 11, 19, 21, id.; see also Exh. A, Folder of
Exhibits). After that, barrio captain Buat went to the municipality of Hagonoy and reported to Vice Mayor
Antonio Biran the shooting of Pablo Remonde. Vice Mayor Biran went to the scene of the incident and
asked the victim who shot him to which the latter answered that he was shot by Gregorio Laquinon (pp. 21
A to 23, tsn, Dec. 8, 1975). Pablo Remonde was placed on a jeep of the Vice Mayor and brought to the
hospital (p. 23, id.). Pablo Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where he
was attended to by Dr. Alfonso Llanos. Dr. Llanos performed an operation on the victim from whose body
a slug was recovered (pp. 15-16, tsn, Jam. 26, 1976; Exh. B). Pablo Remonde died in the hospital on
November 16, 1972 because of bullet wounds (pp. 17-20, tsn, Jan. 26, 1976; see also clinical chart. Exh. C,
Folder of Exhibits)."
The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his defense,
as follows:
"In his defense, the accused declared that he was a KM member; that he was ordered by one Noli Cabardo,
then their CO, to fetch Pablo Remonde; he requested one Cristino Nerosa to go with him, and matter of
factly, they brought Remonde to the place where said CO Cabardo with ten companions, was waiting at the
riverbank; that before reaching the place, Nerosa separated from him and he alone brought Remonde to
Cabardo. There Cabardo confronted Remonde why, having been commanded to buy some provisions in
Matanao, he (Remonde) never returned; to which Remonde answered that he spent the money 'in drinking
and gambling', whereupon Cabardo got mad and as Remonde attempted to escape, he (witness) heard a shot
which must have been fired by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had
that evening a Cal. 22 paltik; that after the shot he saw Remonde sprawled on the ground, and then Cabardo
ordered them to go to the mountain as in fact they did; that two days later during the day, their mountain
camp was raided by the PC and Cabardo and two others were killed while he (witness) was able to escape
and went to Magpet, North Cotabato, and engaged in farming therein with his relatives; but believing that
as a KM member he 'committed something,' he surrendered to the Davao PC Barracks in May, 1975
(Exhibit '2'), where up to now he is being confined."
The accused-appellant prays for the reversal of the appealed judgment on the ground that the lower court
erred in finding him guilty of the crime charged on the basis of the statement attributed to the deceased
Pablo Remonde which reads: llcd
"Q State your name and other personal circumstances.
A Pablo Remonde y Saballa, 24 years old, laborer and resident of Pob. this mun.
"Q Who shot you?
A Mr. Laquinon, a person who ran for councilor before the ticket of Liberal last local election and
son of Suelo Maravillas whose name I don't know.
"Q Why you were shot by said persons above?
A They are suspecting me that I'm an informer of Vice-Mayor Viran regarding KM.
"Q Do you think you'll die with your wound?
A I don't know sir."
The accused-appellant argues that the foregoing statement is inadmissible in evidence as an ante-mortem
declaration because it was not executed under a consciousness of an impending death; and that the
deceased was not a competent witness.
The fact that the deceased had named the son of Suelo Maravillas who turned out as Cristino Nerosa as one
of those who shot him in his dying declaration does not make the deceased an incompetent witness. Nor
does it render said dying declaration incredible of belief. The testimony of the accused that he and Nerosa
separated and that he alone brought the deceased to Noli Cabardo is not corroborated. It may be that Nerosa
was with the accused when the latter shot the deceased, as stated in the dying declaration, but that the
accused testified that Nerosa was not with him when he brought the deceased to Noli Cabardo in order to
free Nerosa from criminal liability. LLphil
Nor does the testimony of Barrio Captain Samama Buat that the place was dark and that the victim has told
him that he was shot by members of the KM make the deceased an incompetent witness. on the contrary, it
strengthens the statement of the deceased since the accused is a member of the KM.

145
But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem declaration
since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the
deceased believed himself in extremis, "at the point of death when every hope of recovery is extinct,"
which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule." 1
It may be admitted, however, as part of the res gestae since the statement was made immediately after the
incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused.
On the whole, We are satisfied with the findings of the trial court that the accused was responsible for the
killing of Pablo Remonde. We cite with approval the following observations of the trial court:
"Indeed, the Court cannot believe that CO Cabardo did the killing as related by the accused for the
following reasons:
"First, when the deceased was allegedly delivered to CO Cabardo, he was already hand-tied at his back,
that the place of the shooting was 'covered by thick bushes and beside the river', and that CO Cabardo was
with ten men excluding the accused; under these circumstances, it is hard to believe that the deceased, with
all those overwhelming handicap, would attempt to flee.
"Second, if the deceased truly tried to flee, the logical thing he would do would be to flee away from and
not towards Cabardo; in doing the former he would turn to his right or to his left or towards his back; if he
fled to his left or right, or towards his back, he would be exposing one side of his body, or his back, and
when fired upon in that position he would have been hit on one side of the body or at his back. The
evidence — as testified to by Dr. Llanos — however, shows that the deceased had only one wound, a
gunshot wound, in the abdomen, this shows he was fired upon frontally, the bullet going through and
through the intestines and lodged, presumably in the bony portions of his back, that is why the slug (Exhibit
'B') was recovered. The accused's version, therefore, that the deceased tried to flee is hard to believe for
being against the physical facts.
"Now, if the accused is innocent, why should he relate such an incredible version?
"Oh what a tangled web they weave when first day practice to deceive."
— Sir Walter Scott
"With these observations, the Court cannot believe that the accused really delivered the deceased to CO
Cabardo and that it was Cabardo who shot him. As testified to by him, their mountain camp was raided by
the PC two days after the incident, as a result of which raid Cabardo and two of their companions were
killed. The accused himself was able to escape, went to hide in a relative's farm in faraway Magpet, North
Cotabato, did farming there until one day in May, 1975, repentant that, as a KM member, he had
'committed something', he finally surrendered to the PC Barracks in Davao City. Cabardo, may he rest in
peace, having gone to the other world, and can no longer speak in his behalf, it is not unlikely that the
accused conceived of this outlandish defense by pointing to CO Cabardo, to free himself from
responsibility.
"Most important to remember on this point is that at the time the deceased made his 'dying' statement,
Cabardo was still alive; that per the accused himself, he had no previous differences with the deceased or
with the barrio captain; and that from the prosecution witness Bo. Capt. Buat, when he took the statement
of the deceased, the deceased was feeling strong, surely, under such circumstances it is hard to believe that
the deceased would name the accused with whom he had no quarrel and Nerosa as his killers if that was
really not the truth."
Accused is guilty beyond reasonable doubt of the crime of murder qualified by treachery. The victim was
apparently shot while his two hands were tied at his back. Accused, in shooting the victim, obviously
employed means or force in the execution of the offense which tended directly and specially to insure its
execution without risk to himself arising from the defense which the offended party might make. cdll
WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased is increased
to P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With costs against the
appellant.
SO ORDERED.
Makasiar, Aquino, Abad Santos, Escolin and Cuevas, JJ., concur.

Rule 131
XXII. Bautista vs Sarmiento

146
FE J. BAUTISTA and MILAGROS J. CORPUS, petitioners, vs. HON. MALCOLM G. SARMIENTO,
District Judge, Court of First Instance of Pampanga, Branch I and the PEOPLE OF THE PHILIPPINES,
respondents.
DECISION
CUEVAS, J p:
In this special civil action of Certiorari and Prohibition with Preliminary Injunction, petitioners assail
respondent Judge Malcolm G. Sarmiento's denial of their Motion to Dismiss filed in the nature of demurrer
to evidence in Criminal Case No. 808 for Estafa entitled "PEOPLE OF THE PHILIPPINES vs. FE
BAUTISTA, MILAGROS CORPUS and TERESITA VERGERE", pending before the defunct Court of
First Instance of Pampanga-Branch I. llcd
An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with estafa was filed before
the sala of Judge Malcolm G. Sarmiento. The third accused, Teresita Vergere, was granted a separate trial.
To prove its case, the prosecution presented during the trial the private complainant, Dr. Leticia C. Yap, as
its only witness. Thereafter, petitioners, believing the prosecution failed to prove their guilty beyond
reasonable doubt, moved to dismissal the case by way of demurrer to the evidence.
In an Order dated June 3, 1976 respondent judge denied said motion. 1 The Order states:
"Fe Bautista and Milagros Corpus, accused, through counsel, filed a 'Motion to Dismiss' (Demurrer to
Evidence) to the information charging the two accused for Estafa. The other third accused Teresita Vergere
an granted a separate trial.
The grounds alleged in the Motion to Dismiss are as follows: First, the information alleges that the two
accused received jewelries from Dr. Leticia C. Yap on April 19, 1975 on consignment. The defense'
contention is that the jewelries were received by the said accused by virtue of purchase and sale. The
defense overlooks the other allegation in the Information specifically alleging: —
'That these pieces of jewelries should be sold by the accused on commission basis and to pay or to deliver
the proceeds thereof to Dr. Leticia C. Yap if sold, and if not sold to return said jewelries.' . . .
'In spite of represented demands made on the said accused, said accused failed and refused and still fails
and refuses to return the jewelries or deliver the proceeds thereof to the damage and prejudice of said Dr.
Leticia C. Yap in the total amount of P77,300.00.'
The meaning of consignment is not a sale.
'It means that the goods sent by one person to another, to be sold or disposed of by the latter for and on
account of the former. The transmission of the goods."
Agency is within the foregoing meaning by Bouvier's Law Dictionary (Vol. 1, pp. 619-620).
The offended party testified that the accused acted as her agents for the sale of the jewelries. Second
ground, that the prosecution failed to establish the prior demand to prove misappropriation on the part of
the accused. Exhibits B and B-1 are documentary evidence to establish demand through Atty. Gorospe
made by the offended party prior to the filing of the case. This letter of demand was subsequently made
after several previous oral demands were made by the complainant on said accused.
The Court believes that the prosecution established a prima facie case of Estafa alleged in the Information
against said accused on the evidence presented so far on record.
PREMISES CONSIDERED, the Court hereby denies the defense' Motion to Dismiss and orders the trial of
this case for the reception of evidence of the accused on July 9, 1976 at 8:00 o'clock in the morning.
SO ORDERED."
Accordingly, a motion for reconsideration was duly filed 2 but was likewise denied "for lack of merit". 3
Hence, this petition.
Initially, it is necessary to point out that the remedy of certiorari is improper. The respondent Judge's order
denying the petitioners' motion to dismiss the complaint by way of demurrer to the evidence is merely an
interlocutory order. It cannot, therefore, be the subject of a petition for certiorari. What should have been
done was to continue with the trial of the case and had the decision been adverse, to raise the issue on
appeal. 4
The rule that certiorari cannot be a substitute for appeal, however, admits an exception. This is when the
questioned order is an oppressive exercise of judicial authority. 5 But, even granting petitioners the benefit
of the exception, still certiorari would not lie. For, as would be shortly explained, there was no arbitrary
exercise of judicial authority.
It is the contention of petitioners that respondent Judge lost jurisdiction to proceed with the trial of the case
and that he was in duty-bound to acquit them, considering his findings in denying their motion to dismiss

147
that ". . . the prosecution established a prima facie case of Estafa alleged in the Information against said
accused on the evidence presented so far on record". Petitioners further argue that in a criminal case,
conviction can be had only upon proof beyond reasonable doubt and not on a mere prima facie case. Cdpr
Since the denial of the motion to dismiss was anchored on a finding of a prima facie case, a clear
understanding of the term and its implications is in order.
"A prima facie case is that amount of evidence which would be sufficient to counterbalance the general
presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending
to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the establishment
of a prima facie case does not take away the presumption of innocence which may in the opinion of the jury
be such as to rebut and control it. Ex parte Parr, 288 P. 852, 855,106 Cal. App. 95." 6
There is no denying that in a criminal case, unless the guilt of the accused is established by proof beyond
reasonable doubt, he is entitled to an acquittal. Put when the trial court denies petitioners' motion to dismiss
by way of demurrer to evidence on the ground that the prosecution had established a prima facie case
against them, they assume a definite burden. It becomes incumbent upon petitioners to adduce evidence to
meet and nullify, if not overthrow, the prima facie case against them. 7 This is due to the shift in the
burden of evidence, and not of the burden of proof as petitioners would seem to believe.
When a prima facie case is established by the prosecution in a criminal case, as in the case at bar, the
burden of proof does not shift to the defense. It remains throughout the trial with the party upon whom it is
imposed — the prosecution. It is the burden of evidence which shifts from party to party depending upon
the exigencies of the case in the course of the trial 8 This burden of going forward with the evidence is met
by evidence which balances that introduced by the prosecution. Then the burden shifts back. LibLex
A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the case in
equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen that at
the trial the weight of evidence is equally balanced or at equilibrium and presumptions operate against
plaintiff who has the burden of proof, he cannot prevail. 9
In the case at bar, the order denying petitioners' motion to dismiss, required them to present their evidence.
They refused and or failed to do so. This justified an inference of their guilt. The inevitable result was that
the burden of evidence shifted on them to prove their innocence, or at least, raises a reasonable doubt as to
their guilt.
Petitioners, likewise, assign as error the order of respondent Judge directing them to present their evidence
after the denial of their motion to dismiss. By doing so, they contend that respondent Judge would, in
effect, be relying on the possible weakness of the defense' evidence, rather than on the strength of the
prosecution's own evidence in resolving their guilt or innocence. LLphil
We find petitioners' aforesaid submission utterly devoid of merit. Such a procedure finds support in the
case of Arbriol vs. Homeres 10 wherein we held that —
"Now that the Government cannot appeal in criminal cases if the defendant would be placed thereby in
double jeopardy (Sec. 2, Rule 118), the dismissal of the case for insufficiency of the evidence after the
prosecution has rested terminates the case then and there. But if the motion for dismissal is denied the court
should proceed to hear the evidence for the defense before entering judgment, regardless of whether or not
the defense had reserved its right to present evidence in the event its motion for dismissal be denied. The
reason is that it is the constitutional right of the accused to be heard in his defense before sentence is
pronounced on him. Of course if the accused has no evidence to present or expressly waives the right to
present it, the court has no alternative but to decide the case upon the evidence presented by the prosecution
alone." (Emphasis supplied).
WHEREFORE, finding the order complained of to be well-taken and there being no grave abuse of
discretion that attended its issuance, the instant petition is DISMISSED with costs against petitioners.
The Presiding Judge of the Regional Trial Court of Pampanga where this case is now assigned, is hereby
ordered to continue immediately with the trial of Criminal Case No. 808 until its final disposition.
SO ORDERED.
Concepcion, Jr., Abad Santos, Escolin and Alampay, JJ., concur.
Aquino (Chairman), J., concurs in the result.

Rule 132
Sec 9.

148
XXIII People vs Rivera
PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. BAYANI S. RIVERA, Judge, Branch 129,
Regional Trial Court of Kalookan City, and WILFREDO L. SEMBRANO, respondent.
The Solicitor General for petitioner.
Eduardo S. Rodriguez for private respondent.
DECISION
NARVASA, J p:
The special civil action of certiorari at bar instituted in this Court to annul an order rendered by the
Regional Trial Court at Kalookan City, Branch 129, in a prosecution for arson docketed in that Court as
Criminal Case No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's theory that he wilfully caused
the fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third
floors of the "I Love You Restaurant and Sauna Bath" owned by Juanito L. Tan, located at No. 2 L.
Bustamante St. Kalookan City. 1
Among the witnesses presented by the Government to demonstrate Sembrano's culpability was Benjamin
Lee, a room boy of the restaurant and bath. Lee testified on direct examination at the hearing of December
8, 1987. His testimony was essentially that Sembrano had run out of the VIP room where the fire had
started and refused to heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987
during which he was cross-examined by defense counsel, gave additional evidence on redirect examination,
was again questioned on recross-examination by the same defense counsel, and thereafter allowed to step
down. 2
The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its
case, and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original
counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S.
Rodriguez. 3 The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination.
4 The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin
Lee's testimony, he came to the conclusion that "there seems to be many points and questions that should
have been asked but were not profounded (sic) by the other defense counsel who conducted . . . (the cross
examination)." It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)"
and the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross
examination was sought to be justified. Over objections of the prosecution, the Court 5 granted the motion.
llcd
Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before the Court for further
cross-examination. These efforts met with no success; and the trial had to be postponed several times. It
appears that Lee had terminated his employment and moved elsewhere without indicating his new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the
inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable,"
and to the fact that "Lee has already been thoroughly examined by the former defense counsel," and
praying upon these premises "that the further examination of Benjamin Lee be dispensed with and . . . the
prosecution . . . allowed to terminate the presentation of its evidence."
By Order dated October 2, 1990, 6 the Trial Court denied the motion to dispense with the recall of
Benjamin Lee. In fact, it ordered "the testimony of Benjamin Lee for the prosecution . . . stricken off the
record for lack of complete cross-examination" because the witness could no longer be found, and "the
failure of counsel for the accused to further cross-examine the witness is not the fault of the defense." 7
In the same order, the Court also set the "reception of further evidence for the prosecution, if any, . . . on
October 23, 1990 . . . as earlier scheduled." Subsequently it denied the private prosecutor's motion for
reconsideration of the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of discretion in
authorizing the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking
out said witness' testimony for want of further cross-examination.
There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. This is clear
from a reading of Section 9, Rule 132 of the Rules of Court, as amended, 9 viz.:
"SECTION 9. Recalling witness. — After the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave
in its discretion, as the interests of justice may require."

149
But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a
particular set of attendant circumstances. The discretion to recall a witness is not properly invoked or
exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest
of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems
to be many points and questions that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of
witness no longer discretionary but ministerial. Something more than the bare assertion of the need to
propound additional questions is essential before the Court's discretion may rightfully be exercised to grant
or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall.
There must be a satisfactory showing on the movant's part, for instance, that particularly identified material
points were not covered in the cross-examination, or that particularly described vital documents were not
presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept
a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no
foundation for a trial court to authorize the recall of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than
said movant's general claim that certain questions — unspecified, it must be stressed — had to be asked. In
doing so it acted without basis, exercised power whimsically or capriciously, and gravely abused its
discretion. cdll
So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely
abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared
that he could no longer be found and produced for further examination. In the first place, the Court acted
unilaterally, without any motion to this effect by the defense and thus without according the prosecution a
prior opportunity to show why the striking out should not be decreed. More importantly, the striking out
was directed without any showing whatever by the defense of the indispensability of further cross-
examination, what it was that would have been elicited by further cross-examination rendering valueless all
that the witness had previously stated. It should be stressed that Lee was subjected both to cross-
examination and recross-examination by former counsel of the accused Sembrano. Obviously the latter was
satisfied that there had been sufficient cross-examination of the witness. Absence of cross-examination may
not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). And there is no
showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the
Court, much less of the expected nature or tenor of his additional testimony which, because not presented,
would necessarily cause the evidence earlier given by Lee to become hearsay or otherwise incompetent,
and therefore, amenable to being stricken from the record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged Order dated October 2,
1990 is NULLIFIED AND SET ASIDE, with costs against private respondent. cdrep
IT IS SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ ., concur.

XXIV People vs Rivera


PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. BAYANI S. RIVERA, Judge, Branch 129,
Regional Trial Court of Kalookan City, and WILFREDO L. SEMBRANO, respondent.
The Solicitor General for petitioner.
Eduardo S. Rodriguez for private respondent.
DECISION
NARVASA, J p:
The special civil action of certiorari at bar instituted in this Court to annul an order rendered by the
Regional Trial Court at Kalookan City, Branch 129, in a prosecution for arson docketed in that Court as
Criminal Case No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's theory that he wilfully caused
the fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third
floors of the "I Love You Restaurant and Sauna Bath" owned by Juanito L. Tan, located at No. 2 L.
Bustamante St. Kalookan City. 1
Among the witnesses presented by the Government to demonstrate Sembrano's culpability was Benjamin
Lee, a room boy of the restaurant and bath. Lee testified on direct examination at the hearing of December
8, 1987. His testimony was essentially that Sembrano had run out of the VIP room where the fire had

150
started and refused to heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987
during which he was cross-examined by defense counsel, gave additional evidence on redirect examination,
was again questioned on recross-examination by the same defense counsel, and thereafter allowed to step
down. 2
The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its
case, and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original
counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S.
Rodriguez. 3 The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination.
4 The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin
Lee's testimony, he came to the conclusion that "there seems to be many points and questions that should
have been asked but were not profounded (sic) by the other defense counsel who conducted . . . (the cross
examination)." It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)"
and the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross
examination was sought to be justified. Over objections of the prosecution, the Court 5 granted the motion.
llcd
Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before the Court for further
cross-examination. These efforts met with no success; and the trial had to be postponed several times. It
appears that Lee had terminated his employment and moved elsewhere without indicating his new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the
inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable,"
and to the fact that "Lee has already been thoroughly examined by the former defense counsel," and
praying upon these premises "that the further examination of Benjamin Lee be dispensed with and . . . the
prosecution . . . allowed to terminate the presentation of its evidence."
By Order dated October 2, 1990, 6 the Trial Court denied the motion to dispense with the recall of
Benjamin Lee. In fact, it ordered "the testimony of Benjamin Lee for the prosecution . . . stricken off the
record for lack of complete cross-examination" because the witness could no longer be found, and "the
failure of counsel for the accused to further cross-examine the witness is not the fault of the defense." 7
In the same order, the Court also set the "reception of further evidence for the prosecution, if any, . . . on
October 23, 1990 . . . as earlier scheduled." Subsequently it denied the private prosecutor's motion for
reconsideration of the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of discretion in
authorizing the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking
out said witness' testimony for want of further cross-examination.
There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. This is clear
from a reading of Section 9, Rule 132 of the Rules of Court, as amended, 9 viz.:
"SECTION 9. Recalling witness. — After the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave
in its discretion, as the interests of justice may require."
But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a
particular set of attendant circumstances. The discretion to recall a witness is not properly invoked or
exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest
of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems
to be many points and questions that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of
witness no longer discretionary but ministerial. Something more than the bare assertion of the need to
propound additional questions is essential before the Court's discretion may rightfully be exercised to grant
or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall.
There must be a satisfactory showing on the movant's part, for instance, that particularly identified material
points were not covered in the cross-examination, or that particularly described vital documents were not
presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept
a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no
foundation for a trial court to authorize the recall of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than
said movant's general claim that certain questions — unspecified, it must be stressed — had to be asked. In

151
doing so it acted without basis, exercised power whimsically or capriciously, and gravely abused its
discretion. cdll
So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely
abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared
that he could no longer be found and produced for further examination. In the first place, the Court acted
unilaterally, without any motion to this effect by the defense and thus without according the prosecution a
prior opportunity to show why the striking out should not be decreed. More importantly, the striking out
was directed without any showing whatever by the defense of the indispensability of further cross-
examination, what it was that would have been elicited by further cross-examination rendering valueless all
that the witness had previously stated. It should be stressed that Lee was subjected both to cross-
examination and recross-examination by former counsel of the accused Sembrano. Obviously the latter was
satisfied that there had been sufficient cross-examination of the witness. Absence of cross-examination may
not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). And there is no
showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the
Court, much less of the expected nature or tenor of his additional testimony which, because not presented,
would necessarily cause the evidence earlier given by Lee to become hearsay or otherwise incompetent,
and therefore, amenable to being stricken from the record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged Order dated October 2,
1990 is NULLIFIED AND SET ASIDE, with costs against private respondent. cdrep
IT IS SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ ., concur.

Section 20
XXV Bunag vs CA
FRANCISCO BUNAG, petitioner, vs. COURT OF APPEALS, ESTRUDES BAUTISTA Vda. de BITUIN
and BRUNO BAUTISTA, respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DEED OF SALE NOT NOTARIZED; CONSIDERED
PRIVATE WRITING; DUE EXECUTION AND AUTHENTICITY THEREOF MUST BE PROVED. —
The deed of sale is not notarized and is, therefore, a private writing, whose due execution and authenticity
must be proved before it can be received in evidence. Proof of the due execution and authenticity of private
writings is required under Section 21, Rule 132 of the Revised Rules of Court.
2. ID.; ID.; ID.; EXCLUDED AS EVIDENCE FOR FAILURE OF PARTY TO PROVE ITS DUE
EXECUTION AND AUTHENTICITY. — The due execution and authenticity of the deed of sale not
having been satisfactorily proven, such private document should be excluded.
3. ID.; CIVIL ACTIONS; STIPULATION OF FACTS SUBMITTED BY BOTH PARTIES;
GENERALLY CONCLUSIVE UPON THEM AND THE COURT. — Stipulation of fact was stipulated by
the parties, it need not be proven, it cannot be contradicted by evidence to the contrary, and it is conclusive
upon the parties, unless it is shown that the admission was made through a palpable mistake. The Court of
Appeals cannot arbitrarily disregard the statement of facts agreed upon by the parties. It is duty bound to
render judgment strictly in accordance with the stipulation of facts.
4. ID.; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS, GENERALLY
BINDING; CASE AT BAR, AN EXCEPTION. — The questions raised in petitioner's petition for review
are questions of fact and not of law and, therefore, this Court should not disturb the findings of fact of the
Court of Appeals. While the Court agrees with private respondents that, ordinarily, the Supreme Court
should not review questions of fact in appeals of this nature, the Court finds, however, that an exception
obtains in the instant case, for clearly evident is a misapprehension of facts.
DECISION
CORTES, J p:
The core of the controversy in this case is a thumbmarked, non-notarized and non-witnessed deed of sale of
a parcel of unregistered land, which on its face cannot but cause a prudent man to doubt its due execution
and authenticity.
The facts are briefly summarized in the decision of the Court of Appeals:
The evidence of the plaintiff consisting of the sole testimony of said plaintiff is to the effect that the
property in question was originally owned by his father Apolonio Bunag Aguas as shown by Tax

152
Declaration Nos. 546 for 1941 and 320 for 1960 (Exhs. B & E), located at San Nicolas, Betis, Pampanga;
that he had been living in their house thereon with his father until 1920 when they transferred their
residence to Tarlac; that in 1925 their house thereon was demolished as it was old; that they planted
bamboos on the land; that Jose Bautista Santiago, a nephew-in-law, erected a house on said lot and lived
therein for sometime until he became a widower when he transferred to another house; that said Jose
Bautista Santiago one day accompanied his sister Estrudes Bautista to stay in that house; and that Santiago
was allowed by his father to build a house on said lot on condition that he would pay for the land taxes as
compensation for the use of the land. He admitted, however, that he only learned about this agreement from
his father. On September 15, 1962, and September 24, 1962 he sent written demands to defendant Bruno
Bautista, thru his lawyer, to vacate the lot and remove the houses thereon, (Exhs. A & B). The testimony of
the other witness Juan Bunag was stricken from the records as he failed to return to court for cross-
examination.
On the other hand, the evidence for the defendant consist of the testimony of defendant Bruno Bautista who
testified that he is the owner of the land in question by virtue of a deed of sale of January 3, 1941, signed by
Apolonio Bunag with his thumbmark; that Bunag first offered it for sale to his brother Jose Bautista, but as
the latter had no money, he referred the matter to his father; that after he was contacted in Baguio by his
father, he sent the P100.00 as consideration of the sale and so the sale was consummated between his father
and Bunag; that he came down from Baguio and had the house repaired and he stayed there with his family
until liberation when they left the house and allowed his sister Estrudes Bautista to live therein; that he
planted bananas, chicos, trees, calamansi, eggplants, thereon; that he had been paying the land taxes
thereon (Exhs. 5 to 5-M); that the property is declared in his name (Exh. 6); and he denies that her sister
Estrudes requested Apolonio Bunag to allow her to stay on the property as her sister had a house of her
own then.
Brigida Bautista testified that her brother bought the said property from Apolonio Bunag and that she was
present when Bunag affixed his thumbmark on the document (Exh. 1 ); that aside from this deed, there
were other documents supporting the sale as the note (Exh. 2) containing the consideration and the parties.
Assessor's Field Sheet of the property (Exh. 3) and the letter of the assessor to Bunag in 1941 informing
him of the revision of the assessment. (Rollo, pp. 15-18).
The trial court decided in favor of petitioner, the dispositive portion of the decision reading as follows:
IN VIEW OF THE FOREGOING, judgment is rendered in favor of the plaintiff. The defendants, Bruno
Bautista and Estrudes Bautista vda. de Bituin, are hereby ordered to vacate the property herein described
and to deliver possession thereof to the plaintiff, Francisco Bunag; ordering the said defendants, jointly and
severally, to pay the land taxes of the property up to and including the year 1968; and to pay the plaintiff
the sum of P15.00 per month as reasonable rentals thereof from the date of this judgment until the property
is delivered to the plaintiff; to pay the plaintiff the sum of P200.00 as expenses of litigation and costs. For
lack of merit, the counterclaim of the defendants are dismissed. (Rollo, pp. 14-15)
The Court of Appeals, finding the deed of sale (Exhibit 1) to have been validly executed and, thus,
concluding that "the preponderance of evidence leans heavily in favor of the claim of the ownership of
defendant Bruno Bautista" [Rollo, p. 18], set aside the decision of the trial court and dismissed the
complaint. The motion for reconsideration was subsequently denied by the Court of Appeals in a minute
resolution for lack of merit.
Consequently, resolution of the instant petition primarily revolves around the issue of the due execution
and authenticity of the deed of sale (Exhibit 1). The petitioner assigned the following errors:
I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF SALE (EXHIBIT "1" ) WAS
DULY EXECUTED AND AUTHENTICATED.
II
THE COURT OF APPEALS ERRED IN MAKING CONCLUSION (SIC) NOT IN ACCORDANCE
WITH THE EVIDENCE ON RECORD.
At the outset, it must be emphasized that the deed of sale (Exhibit 1) was not acknowledged before a notary
public and neither are there any signatures in the blank spaces for the signatures of attesting witnesses. The
document is typewritten in English and over the similarly typewritten words "APOLONIO BUNIAG" is a
thumbprint.
The deed of sale (Exhibit 1) is not notarized and is, therefore, a private writing (U.S. v. Orera, 11 Phil. 596
(1908)], whose due execution and authenticity must be proved before it can be received in evidence [Nolan

153
v. Sales, 7 Phil. 1 (1906); U.S. v. Evangelista, 29 Phil. 215 (1915); Antillon v. Barcelon, 37 Phil. 148
(1917)].
Proof of the due execution and authenticity of private writings is required under Section 21, Rule 132 of the
Revised Rules of Court, to wit:
Sec. 21. Private writing, its execution and authenticity, how proved. — Before any private writing may be
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the writing executed;
(b) By evidence of the genuineness of the handwriting of the maker; or
(c) By a subscribing witness.
To support its conclusion as to the due execution and authenticity of the deed of sale (Exhibit 1), the Court
of Appeals relied on the testimony of Brigida Bautista, a sister of private respondents. She testified as
follows:
Q. Who is the owner of the property?
A. My brother Bruno Bautista.
Q. Do you know how your brother, Bruno Bautista, came to own the same property?
A. Yes, sir. He bought it from Apolonio Bunag.
Q. Do you know if there is any document evidencing the purchase of the said property from Apolonio
Bunag?
A. Yes, sir.
Q. Showing to you this document already marked as Exhibit 1, do you recognize this?
A. Yes, sir, this is the document showing the purchase and sale of the lot in litigation.
Q. At the bottom portion thereof, appears a thumbmark above the typewritten name Apolonio Bunag,
do you know whose thumbmark this is?
A. That is the thumbmark of Apolonio Bunag, sir, and I know that is his because I saw him affixed
(sic) his thumbmark. (TSN, March 29, 1967, pp. 1-2).
However, the trial court found proof of the due execution and authenticity of the deed of sale (Exhibit l )
wanting, reasoning that:
The testimony of this witness (Brigida Bautista) has to be received with caution, coming as it does from a
sister of the defendants. The circumstances of her alleged presence during the "execution" of the deed of
sale was not related. Neither does she give any light as to whether Apolonio Bunag understood the
document. It should be noted that Exhibit "1" was written in English. Since it appears that said document
was merely thumb-marked, it could reasonably be inferred that Apolonio Bunag, the supposed vendor, was
illiterate. Under the circumstances, the minimum proof necessary to establish due authenticity should, in
the least, include evidence that the document (Exhibit "1") was duly read, explained and translated to
Apolonio Bunag. Unfortunately, no such evidence was presented. Another fact which compels this Court to
proceed with caution is the fact that there are no instrumental witnesses in the document. The mischief that
lurks behind accepting at face value a document that is merely thumb-marked, without any witnesses to it,
and not acknowledged before a notary public could be one of the reasons behind the requirement of the
rules on evidence that a private writing must be shown to be duly executed and authenticated. The
probative value of the testimony of Brigida Bautista, who did not furnish us with any details surrounding
the execution of Exhibit "1," coming as it does from a person whose partisanship can not, and should not,
be overlook (sic), falls short from (sic) the minimum requirements of credibility. Indeed it has been said
that the testimony of an eye-witness as to the execution of a private document must be positive. He must
state that the document was actually executed by the person whose name is subscribed thereto. It is not
sufficient if he states in a general manner that such person made the writing (Nolan vs. Salas, 7 Phil. 1).
More so if the document was merely thumb-marked.
Regretably, this Court can not accept, for failure of proof as to its due execution and authenticity, the
probative value of Exhibit "1". (Record on Appeal, pp. 38-39).
The Court sustains and adopts the trial court's findings and its conclusion that private respondents have
failed to prove the due execution and authenticity of the deed of sale (Exhibit 1).
The due execution and authenticity of the deed of sale (Exhibit 1) not having been satisfactorily proven,
such private document should be excluded [Paz v. Santiago, 47 Phil. 334 (1925); Alejandrino v. Reyes, 53
Phil. 973 (1929); Chapman v. Garcia, 64 Phil. 618 (1937); General Enterprises v. Lianga Bay Logging Co.,
G.R. No. L-18487, August 31, 1964, 11 SCRA 733].

154
2. Petitioner contends that the Court of Appeals erred in arriving at a conclusion not supported by the
record, when it said:
The pretension of the plaintiff that the defendant bound himself to pay the taxes for the use of the land is
belied by the fact that the defendant paid the taxes in his own name and not in the name of Bunag, and the
defendant kept the receipts of payment and did not deliver even one of those receipts to Bunag. (Rollo, p.
19.).
Petitioner argues that this finding is grossly erroneous, considering that in the stipulation of facts submitted
by both parties before the trial court, it is expressly provided:
3. That the parties hereto hereby stipulate and agree that the defendant, Bruno Bautista, has been
paying the land taxes due on the aforesaid property, personally or thru his wife, Consolacion Capati, for the
period from 1940 to 1964, as shown by the corresponding official land tax receipts duly issued by the
Municipal Treasurer of Guagua, Pampanga; however, under the column NAME OF DECLARED OWNER
thereof, the name Bunag Aguas Apolonio is written.
As this fact was stipulated by the parties, it need not be proven, it cannot be contradicted by evidence to the
contrary, and it is conclusive upon the parties, unless it is shown that the admission was made through a
palpable mistake [Irlanda v. Pitargue, 22 Phil. 383 (1912); Board of Administrators, Philippine Veterans
Administration v. Agcaoili, G.R. No. L-38129, July 23, 1974, 58 SCRA 72].
There being no allegation of a palpable mistake that would relieve private respondents from the stipulation
of facts, the stipulated fact above-quoted is conclusive upon the parties.
The Court of Appeals cannot arbitrarily disregard the statement of facts agreed upon by the parties [Siping
v. Cacob, 10 Phil. 717 (1908)]. It is duty bound to render judgment strictly in accordance with the
stipulation of facts [Cabrera v. Lacson, 71 Phil. 182 (1940)].
It may also be added that, indeed, in the Real Estate Tax Receipts (Exhibits 5 — 5-M) covering the years
1947 to 1964 presented by private respondents as their evidence, under the column entitled "NAME OF
DECLARED OWNER," the name "Bunag Aguas Apolonio" is written. This assumes greater significance
considering that the payors in these receipts were either private respondent Bruno Bautista, his wife
Consolacion Capati or Ambrosio Bautista.
Thus, this Court finds merit in petitioner's contention that the Court of Appeals' conclusion is not supported
by the record, for said conclusion is contrary to the stipulated fact and the evidence offered by private
respondents, which support petitioner's contention that his father did not sell the disputed property to
private respondents' father, but merely allowed their brother to build a house on the land on the condition
that the latter would pay for the realty taxes due.
With the exclusion of the deed of sale (Exhibit 1), the conclusiveness of the stipulation regarding the
payment of realty taxes and the declaration of Apolonio Bunag Aguas as the owner in the Real Estate Tax
Receipts (Exhibits 5 — 5-M), it becomes apparent that petitioner's father never ceased to own the disputed
property.
At this juncture, it would be opportune to address private respondent's submission that the questions raised
in petitioner's petition for review are questions of fact and not of law and, therefore, this Court should not
disturb the findings of fact of the Court of Appeals. While the Court agrees with private respondents that,
ordinarily, the Supreme Court should not review questions of fact in appeals of this nature, the Court finds,
however, that an exception obtains in the instant case, for clearly evident is a misapprehension of facts [De
la Cruz v. Sosing, 94 Phil. 26 (1953); Castillo v. Court of Appeals, G.R. No. L-48290, September 29, 1983,
124 SCRA 808]. As summarized by the Court in a recent decision:
The jurisdiction of this Court in cases brought to us from the Court of Appeals (now Intermediate Appellate
Court) is limited to the review of errors of law, said appellate court's findings of fact being conclusive upon
us except (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures;
(2) when the inference made is manifestly absurd, mistaken or impossible; (3) when there is grave abuse of
discretion in the appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5)
when the findings of fact are conflicting; and (6) when the Court of Appeals, in making its findings went
beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee . . .
[Rizal Cement Co., Inc. v. Villareal, G.R. No. L-30272, February 28, 1985, 135 SCRA 15].
WHEREFORE, the petition is hereby GRANTED, the decision of the Court of Appeals is set aside and the
decision of the trial court is affirmed in toto. This Decision is immediately executory.
SO ORDERED.
Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

155
C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. L-36527 February 29, 1988


COLLECTOR OF CUSTOMS, ET AL. vs. COURT OF APPEALS, ET AL.
FIRST DIVISION
[G.R. No. L-36527. February 29, 1988.]
COLLECTOR OF CUSTOMS for the Port of Manila, COMMISSIONER OF CUSTOMS and HON.
SECRETARY OF FINANCE, petitioners, vs. COURT OF APPEALS, COURT OF FIRST INSTANCE OF
MANILA, BRANCH XIII, presided over by Hon. JESUS P. MORFE and JESUS G. DE JESUS,
respondents.

SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; ONLY QUESTIONS OF LAW
MAY BE RAISED THEREIN. — This Court has ruled that only questions of law may be raised in a
Petition for Certiorari under Rule 45. The Supreme Court does not re-examine the facts of the case in a
Petition for Certiorari under Rule 45, except for unusual reasons which would justify otherwise.
2. ID.; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS, BINDING ON
APPEAL. — The arguments raised by the Solicitor General in the instant Petition assail a finding of fact
made by the Court of Appeals — that the Solicitor General received his copy of the Decision of the trial
court on May 23, 1972. The Solicitor General impresses upon this Court that the true date is May 25, 1972
contrary to the finding of fact made by the appellate court. Under these circumstances, the arguments in the
instant Petition are unavailing inasmuch as this Court is bound by the findings of fact made by the Court of
Appeals, absent any good reason to hold otherwise. Barring, therefore, a showing that the findings
complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to
constitute a serious abuse of discretion, such findings must stand, for this Court is not expected or required
to examine and contrast the oral and documentary evidence submitted by the parties. The Solicitor General
has not satisfactorily demonstrated the existence of any of these aforementioned grounds in order to
warrant a review of the case.
3. ID.; CIVIL ACTIONS; PERFECTION OF APPEAL OR FILING OF PETITION FOR REVIEW
WITHIN REGLEMENTARY PERIOD, MANDATORY. — The perfection of an Appeal or the filing of a
Petition for Review within the reglementary period fixed by the Rules is mandatory and jurisdictional and
the failure to do so renders the questioned Decision final and executory and it becomes the ministerial duty
of the court concerned to order execution of judgment.
DECISION
GANCAYCO, J p:
This is a Petition for certiorari under Rule 45 of the Rules of Court. It seeks a review of a Decision of a
Special Division of the Court of Appeals in CA-G.R. No. 01347 promulgated on January 23, 1973. 1
The record of the case discloses that private respondent Jesus G. De Jesus is a businessman engaged in the
business of tobacco importation. Sometime in the late 1960s, he arranged for the importation of a sizeable
amount of tobacco from Richmond, Virginia, U.S.A. When the tobacco arrived at the Port of Manila, some
difficulties arose. The customs authorities refused to process the importation on the grounds that a law had
been violated and that some other required documents were not presented by the private respondent.
The private respondent made several attempts to obtain the release of the tobacco to no avail. This
prompted him to seek relief from the then Court of First Instance of Manila. He filed a Petition for
injunction, prohibition and mandamus. The respondents named in the suit were the Collector of Customs
for the Port of Manila, the Commissioner of Customs and the Secretary of Finance. 2 The case was
docketed as Civil Case No. 83572 and assigned to Branch XIII thereof. The private respondent asked the
trial court to order the release of the said importation.
On July 10, 1971, the private respondent submitted a Supplemental Petition. On July 29, 1971, the Office
of the Solicitor General, representing the Collector of Customs, the Commissioner of Customs and the
Secretary of Finance, submitted an Answer to both Petitions. The trial court conducted a hearing on the
case.
On May 15, 1972, the trial court rendered a Decision in favor of the private respondent. 3 The Solicitor
General alleges that it received a copy of the said Decision only on May 25, 1972. 4 On June 23, 1972, the

156
Solicitor General filed a Notice of Appeal with the trial court. On June 26, 1972, the private respondent
sought the issuance of a writ of execution pending appeal.
In its Order dated July 11, 1972, the trial court held that the Solicitor General was served a copy of the
Decision dated May 15, 1972 on May 23, 1972 and not on May 25, 1972 as so alleged. The trial court
concluded that the said Decision had already become final and executory when the Notice of Appeal was
filed. 5 Thus, the Appeal was disallowed.
The Solicitor General sought a reconsideration of the said Decision. In its Order dated August 10, 1972, the
trial court denied the Motion for Reconsideration. On August 19, 1972, the trial court issued a writ of
mandamus ordering thereby the release of the imported tobacco to the custody of the private respondent.
The trial court in effect issued a writ of execution of its judgment.
On September 15, 1972, the Solicitor General elevated the case to the Court of Appeals on a Petition for
certiorari, prohibition and mandamus with a prayer for the issuance of a writ of preliminary injunction. 6
The case was docketed as CA-G.R. No. 01347 and assigned to a Special Division of the appellate court
composed of five members.
The thrust of the said Petition is that the Solicitor General received his copy of the Decision of the trial
court on May 25, 1972 and as such, the Notice of Appeal filed with the trial court on June 23, 1972 was
filed well within the 30-day reglementary period provided for under the then existing Rules. The Solicitor
General maintained that an Appeal to the Court of Appeals had already been perfected and that,
accordingly, the trial court had lost its jurisdiction over the case, i.e., it no longer has the requisite
jurisdiction to issue the writ of mandamus ordering the release of the imported tobacco to the custody of the
private respondent, a virtual writ of execution of the judgment of the trial court.
In sum, the Solicitor General asked the appellate court to allow the Appeal and to enjoin the trial court from
enforcing the writ of mandamus it had issued earlier.
As prayed for, the appellate court issued a restraining order enjoining the trial court from enforcing the writ
of mandamus. 7 Thereafter, the private respondent submitted his Answer to the said Petition.
In its Decision promulgated on January 23, 1973, the Court of Appeals ruled in favor of the private
respondent. 8 After examining the record of the case, the appellate court held that the Solicitor General
received his copy of the Decision of the trial court on May 23, 1972 and that, accordingly, the Notice on
Appeal was filed beyond the reglementary period provided for under the Rules and that as such, the
questioned Decision had already become final and executory. The Court of Appeals sustained the findings
of the trial court, lifted the restraining order it had issued earlier, and dismissed the Petition for lack of
merit.
The Solicitor General asked for a reconsideration of the Decision of the appellate court but it did not
prosper. Hence, the case was brought to this Court by way of the instant Petition, with the Solicitor General
representing the herein petitioners — the Collector of Customs, the Commissioner of Customs, and the
Secretary of Finance.
The instant Petition is anchored on the argument that the Solicitor General received his copy of the
Decision of the trial court on May 25, 1972 and not on May 23, 1972 as held by the Court of Appeals. For
his part, the private respondent submitted a Brief through which he sought a denial of the instant Petition on
the ground that the arguments raised by the herein petitioners are factual in character and thus beyond the
scope of a Petition for certiorari under Rule 45.
The parties submitted their respective subsequent pleadings after which the case was deemed submitted for
decision.
We have gone through the arguments of both parties and We are convinced that the instant Petition is
devoid of merit.
This Court has ruled that only questions of law may be raised in a Petition for certiorari under Rule 45. 9
The Supreme Court does not re-examine the facts of the case in a Petition for certiorari under Rule 45,
except for unusual reasons which would justify otherwise. 10
The arguments raised by the Solicitor General in the instant Petition assail a finding of fact made by the
Court of Appeals — that the Solicitor General received his copy of the Decision of the trial court on May
23, 1972. The Solicitor General impresses upon this Court that the true date is May 25, 1972 contrary to the
finding of fact made by the appellate court. Under these circumstances, the arguments in the instant Petition
are unavailing inasmuch as this Court is bound by the findings of fact made by the Court of Appeals, absent
any good reason to hold otherwise. Barring, therefore, a showing that the findings complained of are totally
devoid of support in the record, or that they are so glaringly erroneous as to constitute a serious abuse of

157
discretion, such findings must stand, for this Court is not expected or required to examine and contrast the
oral and documentary evidence submitted by the parties. 11 The Solicitor General has not satisfactorily
demonstrated the existence of any of these aforementioned grounds in order to warrant a review of the case.
The review sought by the petitioners is not even justified under any of the grounds provided in Section 4,
Rule 45 which would allow such review, to wit —
"(a) When the Court of Appeals has decided a question of substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions
of the Supreme Court:
"(b) When the Court of Appeals has so far departed from the accepted and usual course of judicial
proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision.
On the basis of these observations, the inevitable conclusion is that the herein petitioners failed to perfect
an Appeal of their case to the Court of Appeals. The perfection of an Appeal or the filing of a Petition for
Review within the reglementary period fixed by the Rules is mandatory and jurisdictional and the failure to
do so renders the questioned Decision final and executory and it becomes the ministerial duty of the court
concerned to order execution of judgment. 12
WHEREFORE, in view of the foregoing, the instant Petition is hereby DENIED for lack of merit. We
make no pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Griño-Aquino, JJ., concur.

Section 21
XXV1 Bartolome vs IAC
RESURRECCION BARTOLOME, et al., * petitioners, vs. THE INTERMEDIATE APPELLATE COURT
(now Court of Appeals) and HEIRS OF SPOUSES BERNABE BARTOLOME and URSULA CID,
respondents.
Rafael B. Ruiz for petitioners.
E.L. Peralta for private respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; REQUISITES WHEN PRIVATE WRITING NEED NOT BE
PROVEN BY OTHER EVIDENCE OF ITS EXECUTION AND AUTHENTICITY. — Rule 132 of the
Rules of Court provides: "SEC. 22. Evidence of execution not necessary. — Where a private writing is
more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and
is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and
authenticity need be given." We agree with the appellate court that the first two requirements ordained by
Section 22 are met by Exhibit 4. It appearing that it was executed in 1917, Exhibit 4 was more than thirty
years old when it was offered in evidence in 1983. It was presented in court by the proper custodian thereof
who is an heir of the person who would naturally keep it.
2. ID.; ID.; PROOFS OF DUE EXECUTION AND AUTHENTICITY OF ANCIENT WRITING. —
Under Section 21 of Rule 132, the due execution and authenticity of a private writing must be proved either
by anyone who saw the writing executed, by evidence of the genuineness of the handwriting of the maker,
or by a subscribing witness. The testimony of Dominador Bartolome on Exhibit 4 and Ursula Cid's sworn
statement in 1937 do not fall within the purview of Section 21. The signature of Maria Gonzales on the
missing fourth page of Exhibit 4 would have helped authenticate the document if it is proven to be genuine.
But as there can be no such proof arising from the signature of Maria Gonzales in the deed of sale, the same
must be excluded.
3. CIVIL LAW; CODE OF CIVIL PROCEDURE; WILLS AND SUCCESSION; SURVIVING
SPOUSE ENTITLED ONLY TO THE PROPERTY IN USUFRUCT. — Even if Exhibit 4 were complete
and authentic, still, it would substantially be infirm. Under Article 834 of the old Civil Code, Maria
Gonzales, as a surviving spouse, "shall be entitled to a portion in usufruct equal to that corresponding by
way of legitime to each of the legitimate children or descendants who has not received any betterment."
And, until it had been ascertained by means of the liquidation of the deceased spouse's estate that a portion
of the conjugal property remained after all the partnership obligations and debts had been paid, the
surviving spouse or her heirs could not assert any claim of right or title in or to the community property
which was placed in the exclusive possession and control of the husband as administrator thereof. Hence, in

158
the absence of proof that the estate of Epitacio Batara had been duly settled, Maria Gonzales had no right to
sell not even a portion of the property subject of Exhibit 4.
4. ID.; LAND TITLE AND DEEDS; ACQUISITIVE PRESCRIPTION; PERIOD SUSPENDED
UPON THE INSTITUTION OF CADASTRAL PROCEDURES. — On the issue of whether acquisitive
prescription runs during the pendency of a cadastral case, we hold, as this Court held in Cano v. De
Camacho, that the institution of cadastral proceedings, or at least the publication of the notice therein
issued, has the effect of suspending the running of the prescriptive period. Hence, the appellate court erred
in ascribing acquisitive prescription in favor of Ursula Cid "up to the present."
5. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; TAX DECLARATIONS;
DOES NOT CONCLUSIVELY PROVE OWNERSHIP. — While it is true that the property had been
declared for tax purposes by Bernabe Bartolome and that, subsequent to his death, taxes thereon were paid
in the name of his son, Dominador, ownership thereof had not been acquired by Ursula Cid or her heirs.
Aside from the fact that said declarations and payments were made during the pendency of the cadastral
case, a tax declaration in the name of the alleged property owner or of his predecessor-in-interest, does not
prove ownership. It is merely an indicium of a claim of ownership. In the same manner, neither does the
payment of taxes conclusively prove ownership of the land paid for.
DECISION
FERNAN, C.J p:
This is a petition for review on certiorari of the decision 1 of the then Intermediate Appellate Court
"adjudicating the whole Lot No. 11165 in favor of" Bernabe Bartolome and Ursula Cid, thereby reversing
the decision 2 of the Regional Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositive
portion of the latter decision states:
"WHEREFORE, judgment is hereby rendered adjudicating the eastern portion to the heirs of the late
Epitacio Batara measuring 27 meters from south to north by 32 meters from east to west, with an area of
864 square meters, bounded on the east by the Provincial Road; on the north by the heirs of Rufo Manuel;
on the west by a portion of the same Lot No. 11165; and on the south by Lot No. 11164; the remaining
portion to the heirs of Doroteo Bartolome, bounded on the east by the portion of Lot No. 11165 adjudicated
to the heirs of Epitacio Batara and heirs of Rufo Manuel; on the north by Eugenio Andrada; on the west by
Nieves Caday or Lot No. 11166; and on the south by Lot No. 11164.
"Likewise, the heirs of Epitacio Bartolome Batara are hereby ordered to reserved (sic) the road right of way
for the necessary expansion of the road adjacent to the eastern side of said lot, subject, however, to just
compensation. cdphil
"Once this Decision becomes final, let the corresponding Decree be issued accordingly.
"IT IS SO ORDERED."
The record shows that a 725-square meter portion of said Lot No. 11165 located in Barrio 11, Laoag, Ilocos
Norte, was first declared as his property by Epitacio Batara under tax declaration No. 5708 dated May 23,
1906. 3 The property was described therein as bounded on the north by the property of Pedro Manuel, on
the east by the road, on the south by the property of Doroteo Bartolome and on the west by the property of
one named Esteban, and as having "una casa de tabla de dimension 5 x 4 metros" as improvement. Tax
declaration No. 5708 was superseded by tax declaration No. 37576 labelled as a "revision of declaration of
real property (urban)" dated April 23, 1914. 4 The residential lot described in the latter tax declaration
contained an area of 772 square meters with a "casa" and a "granero" as improvements thereon.
Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina and Pedro. The latter died a
bachelor and without issue. Catalina, who married someone surnamed Bartolome, bore five children named
Isabela, Tarcila, Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle in Culalabo,
Gamo (Burgos), Isabela, Epitacio entrusted the lot to his cousin, Doroteo Bartolome, who owned the lot
bounding Epitacio's property on the south. 5 Maria Gonzales remained in the lot for sometime. When she
later followed Epitacio to Isabela, she allowed Doroteo Bartolome to continue taking charge of the
property. 6
In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria Gonzales and her grandchildren,
Calixto and Resurreccion Bartolome, returned to Laoag. As they found that the house on their lot was
destroyed by fire, they boarded in someone else's house. Calixto constructed a bamboo fence around his
grandfather's lot and he and Resurreccion, who was studying in Laoag, cleaned it. Resurreccion went back
to Isabela after Maria Gonzales' death in 1926. 7 It was also in that year when Doroteo Bartolome, to
whom Epitacio had entrusted his land, migrated to Davao City. Doroteo died there two years later. 8

159
Thereafter, the Director of Lands instituted cadastral proceedings over the land involved herein (Cadastral
Case No. 53). On October 23, 1933, Ursula Cid, the widow of the son of Doroteo Bartolome, Bernabe, who
died in 1928, 9 filed an answer in Cadastral Case No. 53, claiming ownership over Lot No. 11165 with an
area of 1660 square meters, described as bounded on the north by the property of Rufo Manuel and Eugenia
Andrada, on the east by the provincial road, on the south by the property of Doroteo Bartolome, and on the
west by the property of Nieves Caday and Eugenia Andrada, and with a house as improvement thereon.
The land was allegedly acquired by Ursula Cid through inheritance from Doroteo Bartolome, the father of
Ursula's deceased husband, Bernabe. 10
More than three months later or on January 30, 1934, Resurreccion Bartolome also filed an answer in the
same cadastral case claiming ownership over a portion of Lot No. 11165 with an area of 864 square meters
described as bounded on the north by the property of the heirs of Rufo Manuel, on the east by Blumentritt
Street, on the south by the property of Doroteo Bartolome, and on the west by the property of Bernabe
Bartolome. No improvements on the lot were indicated in the answer which also stated that said portion of
Lot No. 11165 was acquired by claimant Resurreccion Bartolome "by inheritance from my grandfather and
grandmother . . . Epitacio Batara and Maria Gonzales." 11
From then on, no further proceedings were held in the cadastral case. Meanwhile, in 1934, Resurreccion
Bartolome verbally entrusted the portion she had claimed to Maria Bartolome, whom she later described as
the daughter of Doroteo Bartolome. 12
In 1939, Ursula Cid and her children also migrated to Davao City leaving their house on Lot No. 11165 to a
lessee, Severino Ramos. Ursula and her son, Dominador Bartolome, instructed Maria Bartolome, the sister
of Bernabe, to receive the rentals for the house from Severino Ramos. 13 Maria Bartolome also paid the
taxes on the property until 1948, when Dominador took over the task. 14 But on September 22, 1950,
Maria Bartolome, as "administrator of the parcel of land situated at Bo. 11, Laoag, Ilocos Norte," leased
Lot No. 11165 to the Philippine United Trading Co., Inc. 15 The rentals for the property were paid by the
lessee to Dominador Bartolome until the edifice housing the company was burned down in 1968. 16
Resurreccion Bartolome, who had been residing in Isabela, was given by Maria Bartolome a small amount,
which could have been about P50, in consideration of the lease contract. 17
In June, 1968, the Court of First Instance of Ilocos Norte sent out notices for the "continuation of the
hearing" on June 13, 1968 in Cadastral Case No. 53. 18 It should be remembered, however, that from the
time Ursula Cid and Resurreccion Bartolome filed their answers to the petition in the cadastral case, there
had been no progress in the proceedings. LLjur
A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a "motion to admit answer in
intervention," alleging that she is one of the children of Doroteo Bartolome and that she and her co-heirs
had been excluded in Ursula Cid's answer to the petition. She therefore prayed that the answer of Ursula
Cid be amended so as to include the rightful heirs of Doroteo Bartolome. 19 At the same time, she filed an
answer claiming co-ownership over Lot No. 11165 with Clemente, Julia and Rosario Bartolome and Ursula
Cid, the widow of Bernabe. She likewise alleged therein that she and her siblings inherited the 1660-square
meter lot from Doroteo Bartolome. 20
Three months later, Ursula Cid filed a motion to amend her answer to reflect the complete "ground or basis
of acquisition" of Lot No. 11165. 21 In her amended answer, Ursula Cid stated that she was the absolute
owner of Lot No. 11165; that she had been the possessor of Lot No. 11165 for over fifty years; that she
"acquired by inheritance from Bernabe Bartolome, who together with her, purchased the . . . lot which used
to be three adjoining lots from their respective owners;" and that Lot No. 11165 had been declared for tax
purposes in the name of her late husband Bernabe Bartolome. 22
No hearing was conducted in the case until 1974. To buttress her claim that she and her husband purchased
Lot No. 11165, Ursula Cid presented at the trial three deeds of sale: [a] one dated March 1, 1917 showing
that Bernabe Bartolome and Ursula Cid bought a 374-square meter lot for fifteen pesos from the spouses
Domingo Agustin and Josefa Manrique; 23 [b] another document dated February 18, 1913 executed by
Ignacia Manrique in favor of Bernabe Bartolome evidencing the sale of another lot also for fifteen pesos;
24 and [c] still another deed executed by Maria Gonzales y Paguyo on February 9, 1917 in favor of
Bernabe Bartolome and Ursula Cid ceding to the latter 772 square meters of land for P103.75. 25 The last-
mentioned piece of land is the one being claimed by Resurreccion Bartolome.
On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decision the dispositive portion of
which is quoted above. The court entertained only the answers of Ursula Cid and Resurreccion Bartolome.
It found that the lots described in Exhibits 2 and 3 presented by Ursula Cid "are not within Lot 11165" and

160
that said exhibits "are defective as the vendors are not the real owner(s)" of the lots described therein. As to
Exhibit 4, the court ruled that it has "no probative value as the same is incomplete and unsigned." The court
also held that Ursula Cid's possession of the land "after the claimants had filed their respective answer(s) or
after the declaration of a general default," did not confer ownership on her because said possession was
interrupted and merely tolerated by all the parties during the pendency of the case. 26
Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing the lower court, the
appellate court held that the deeds of sale presented by Ursula Cid are ancient documents under Section 22,
Rule 132 of the Rules of Court. It also ruled that Ursula Cid's continuous possession of the lot from its
acquisition and her exercise of rights of ownership over it vested her with the legal presumption that she
possessed it under a just title. llcd
Her motion for the reconsideration of said decision having been denied, Resurreccion Bartolome filed the
instant petition for review on certiorari based on two principal issues: [a] whether the provisions of Rule
132 on ancient documents are applicable with respect to Exhibit 4, and [b] whether acquisitive prescription
runs during the pendency of a cadastral case.
Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which apparently serves as a
cover page. The two other pages contain the handwritten document in Ilocano stating that in consideration
of the amount of P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid
772 square meters of land bounded on the north by the property of Pedro Manuel, on the east by the
Bacarra road, on the south by the property of Doroteo Bartolome and on the west by the property of
Bernabe Bartolome. The third sheet or page 2 thereof contains a warranty against eviction and other
disturbances with the last three lines indicating the date of the execution of the instrument.
According to Dominador Bartolome, he first saw Exhibit 4 in the possession of his mother, Ursula Cid,
when he was just eleven years old. He noticed that the document had a fourth page containing the signature
of Maria Gonzales and that all four pages were sewn together. 27 However, when the document was
entrusted to him by his mother in 1947 as he was then representing the family in litigation concerning the
land, the document's fourth page was already missing. 28 He stated that his mother told him that the fourth
page was lost during the Japanese occupation while they were evacuating from Davao City. 29
Dominador Bartolome also presented in court a sworn statement in Ilocano executed by Ursula Cid on
February 19, 1937. 30 In her statement, Ursula Cid declared that the sale of the lot to her and her husband
by Maria Gonzales was evidenced by a written instrument; that the land had been transferred in the name of
her husband; that she had been paying taxes therefor, and that they had been in continuous possession of
the land for more than twenty years. 31
Rule 132 of the Rules of Court provides:
"SEC. 22. Evidence of execution not necessary. — Where a private writing is more than thirty years
old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any
alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be
given."
We agree with the appellate court that the first two requirements ordained by Section 22 are met by Exhibit
4. It appearing that it was executed in 1917, Exhibit 4 was more than thirty years old when it was offered in
evidence in 1983. 32 It was presented in court by the proper custodian thereof who is an heir of the person
who would naturally keep it. 33 We notice, however, that the Court of Appeals failed to consider and
discuss the third requirement; that no alterations or circumstances of suspicion are present.
Admittedly, on its face, the deed of sale appears unmarred by alteration. We hold, however, that the
missing page has nonetheless affected its authenticity. Indeed, its importance cannot be overemphasized. It
allegedly bears the signature of the vendor of the portion of Lot No. 11165 in question and therefore, it
contains vital proof of the voluntary transmission of rights over the subject of the sale. Without that
signature, the document is incomplete. Verily, an incomplete document is akin to if not worse than a
document with altered contents. LibLex
Moreover, there is a circumstance which bothers the Court and makes the genuineness of the document
suspect. If it is really true that the document was executed in 1917, Ursula Cid would have had it in her
possession when she filed her answer in Cadastral Case No. 53 in 1933. Accordingly, she could have stated
therein that she acquired the portion in question by purchase from Maria Gonzales. But as it turned out, she
only claimed purchase as a mode of acquisition of Lot No. 11165 after her sister-in-law, Maria J.
Bartolome and the other descendants of Doroteo Bartolome sought intervention in the case and demanded
their rightful shares over the property.

161
All these negate the appellate court's conclusion that Exhibit 4 is an ancient document. Necessarily, proofs
of its due execution and authenticity are vital. Under Section 21 of Rule 132, the due execution and
authenticity of a private writing must be proved either by anyone who saw the writing executed, by
evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. The testimony of
Dominador Bartolome on Exhibit 4 and Ursula Cid's sworn statement in 1937 34 do not fall within the
purview of Section 21. The signature of Maria Gonzales on the missing fourth page of Exhibit 4 would
have helped authenticate the document if it is proven to be genuine. But as there can be no such proof
arising from the signature of Maria Gonzales in the deed of sale, the same must be excluded. 35
Even if Exhibit 4 were complete and authentic, still, it would substantially be infirm. Under Article 834 of
the old Civil Code, Maria Gonzales, as a surviving spouse, "shall be entitled to a portion in usufruct equal
to that corresponding by way of legitime to each of the legitimate children or descendants who has not
received any betterment." And, until it had been ascertained by means of the liquidation of the deceased
spouse's estate that a portion of the conjugal property remained after all the partnership obligations and
debts had been paid, the surviving spouse or her heirs could not assert any claim of right or title in or to the
community property which was placed in the exclusive possession and control of the husband as
administrator thereof. 36 Hence, in the absence of proof that the estate of Epitacio Batara had been duly
settled, Maria Gonzales had no right to sell not even a portion of the property subject of Exhibit 4. prcd
On the issue of whether acquisitive prescription runs during the pendency of a cadastral case, we hold, as
this Court held in Cano v. De Camacho, 37 that the institution of cadastral proceedings, or at least the
publication of the notice therein issued, has the effect of suspending the running of the prescriptive period.
Hence, the appellate court erred in ascribing acquisitive prescription in favor of Ursula Cid "up to the
present." 38
Neither can Ursula Cid successfully assert that prior to the institution of the cadastral proceedings, she and
her husband had gained acquisitive prescription over the property. Until Doroteo Bartolome migrated to
Davao City in 1926, he was in possession of the whole lot including the portion entrusted to him by
Epitacio Batara. Granting that the 1520-square meter lot Bernabe Bartolome had declared as his own in
1925 39 is within Lot No. 11165, still, the period from 1925 until the filing of the cadastral case in 1933
failed to give him an advantage. It is short of the 10-year actual, adverse and uninterrupted period of
possession mandated by Section 41 of the Code of Civil Procedure in order that a full and complete title
could be vested on the person claiming to be the owner of a piece of land.
Furthermore, while it is true that the property had been declared for tax purposes by Bernabe Bartolome
and that, subsequent to his death, taxes thereon were paid in the name of his son, Dominador, 40
ownership thereof had not been acquired by Ursula Cid or her heirs. Aside from the fact that said
declarations and payments were made during the pendency of the cadastral case, a tax declaration in the
name of the alleged property owner or of his predecessor-in-interest, does not prove ownership. It is merely
an indicium of a claim of ownership. 41 In the same manner, neither does the payment of taxes
conclusively prove ownership of the land paid for.
The foregoing discussion notwithstanding, the Court is unprepared to decree 824 square meters of Lot No.
11165 in favor of Resurreccion Bartolome and her co-heirs to the of Epitacio Batara. The revised
declaration of real property in the name of Epitacio, which petitioners presented as Exhibit B, reveals that
Epitacio Batara owned only 772 square meters of the lot involved. Certainly, petitioner and her co-heirs
may not be entitled to an area greater than what their grandfather claimed as his own. cdphil
Similarly, what remains of Lot No. 11165 after the portion herein adjudicated to Resurreccion Bartolome
and her co-heirs has been determined, may not be granted to the heirs of Bernabe Bartolome and Ursula
Cid exclusively. The two other deeds of sale presented as Exhibits 2 and 3 having been found worthless by
the trial court as they involve parcels of land not within Lot No. 11165 and the vendors of which were not
the real owners of the property, which findings of facts are binding on this Court, the law mandates that the
property, having been inherited from Doroteo Bartolome, must be shared in equal portions by his children
or their heirs.
WHEREFORE, the appealed decision of the then Intermediate Appellate Court is hereby reversed and set
aside.
The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby adjudicated in favor of
the heirs of Epitacio Batara who are herein represented by Resurreccion Bartolome while the remaining
area of Lot No. 11165 is hereby adjudicated in favor of the heirs of Doroteo Bartolome.
Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165. No costs. SO ORDERED.

162
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Section 23
XXVII Anchuelo vs CA

CELSA PUNCIA ANCHUELO, ET AL., petitioners, vs. INTERMEDIATE APPELLATE COURT and
BENITO GAVINO, ET AL., respondents.
Bernabe C. Cabico for petitioners.
Augusto A. Pardalis for private respondents.
DECISION
GUTIERREZ, JR., J p:
This is a petition to review the decision of the Intermediate Appellate Court, now Court of Appeals, which
affirmed the decision of the then Court of First Instance in Civil Case No. R-642 (7289) entitled "Celsa
Puncia Anchuelo, et al. v. Benito Gavino, et al." for reformation of contract and accounting with damages.
In their complaint filed on April 27, 1972, Antonio Anchuelo and petitioner Celsa Puncia alleged that they
are the owners of seven (7) parcels of land covered by Original Certificate of Title (Free Patent) No. 586;
that on May 19, 1961, they secured a loan from Benito Gavino and Juana Euste in the amount of P3,000.00
but, instead of executing a deed of mortgage over the said parcels of land, the Gavinos induced the
Anchuelos to execute a supposed deed of sale with the understanding that the Gavinos would execute
another document on the same day to make the transaction appear as an agreement to resell but its essence
is one of repurchase of the same properties after the lapse of nineteen (19) years from the date of execution;
that the consideration on both documents in the amount of P28,000.00 is fictitious, the truth, being that the
actual amount of the loan obtained was only P3,000.00; that the Anchuelos offered to repurchase the
properties for the actual amount of the loan obtained but the Gavinos refused, that Benito Gavino had
transferred the properties to his sister and co-defendant Martha Gavino and thereafter re-transferred the
same properties to his other co-defendants Jaime and Juan both surnamed Gavino; that these transfers
resulted in the issuance of certificate of title to those other defendants which were fictitious for want of
consideration; hence, the petitioners prayed among others, that the deed of sale be annulled; that they be
allowed to repurchase the subject properties; and that the certificate of title of the various defendants
covering the subject properties be annulled.
In their Answer, the Gavinos denied the allegations of the complaint and alleged that the deed of sale
correctly reflects the true intention of the actual transaction between them and the plaintiffs, and that the
amount of P28,000.00 stated in the document as consideration thereof is the purchase price of the subject
properties; and that the transfer of the properties from the defendants Benito Gavino and Juana Euste to
Martha Gavino and thereafter to Jaime and Juan Gavino were true and legitimate transactions and that there
were considerations in such sales. They admitted the execution of the document "Promise to Resell" but
alleged it was void for want of consideration.
In the course of the proceedings in the lower court, Antonio Anchuelo died and he was substituted by his
children with Celsa Puncia Anchuelo.
The trial court found the facts of the case, as follows:
xxx xxx xxx
"[S]ometime in the year 1954 the Anchuelos were in great financial stress which prompted them to
encumber or alienate seven (7) parcels of their conjugal land.
"The seven (7) parcels were mortgaged to the Rehabilitation Finance Corporation (RFC) for P3,000.00
which loan was increased by P2,000.00 on October 9, 1956 (Exhibits 2 & 3).
"A loan of P2,000 was also obtained from the Philippine National Bank (PNB) which was secured by a
second mortgage on the same property. Three years later, that was on October 16, 1958 the Anchuelos
obtained once more a loan for P7,000.00 from Leonor Cayetano. As security they constituted a second
mortgage in which the mortgagee was to assume the indebtedness of the Anchuelos to the DBP.
"As the finances of the Anchuelos did not improve, interests from banking institution accumulated, they
finally conveyed the property to defendants Benito Gavino and Juana Euste Gavino for P18,000.00 (Exh.
13) which included the P7,000.00 loaned from Leonor Cayetano and, with assumed interest, becomes
P7,850.00 (Exh. 9); the amount of P1,500.00 stated in the Pacto de Retro of Lot 1 of Original Certificate of
Title No. 568; and also the amount of P4,541.39 which was paid by Benito Gavino to the RFC and the
amount of P2,104.55 paid to the PNB. The balance of P2,105.06 was paid in cash to the Anchuelos.

163
"On May 19, 1961, the Anchuelo spouses transformed the Pacto de Retro to an absolute sale (Exhs. A, A-1
& Exh. 16) with the increase in price to P28.000.00.
"It should be noted that from the alleged P18,000.00 amount of the supposed consideration, there was a
total payment made by the defendant Benito Gavino in the sum of P15,995.94 which is short of P2,105.06
to complete the full amount of P18,000.00. The defendants alleged that the amount was paid in cash (p. 26,
TSN, Sept. 12, 1975, Annexes 2, Reconstituted Transcript).
"Out of the P28,000.00 of which the sum of P18,000.00 was considered paid, there exist an existing
balance of P10,000.00. How was this amount of P10,000.00 paid by the Gavinos? The amount of P5,500.00
was allegedly paid by the Gavinos when Exhibit A and Exhibit 16 was executed as explained by the
defendant, and the sum of P4,500.00 was covered by a Promissory Note dated May 19, 1961 (Exh. 10).
"From the promissory note abovementioned, it gives December 31, 1962 as the date of maturity.
Nevertheless, on November 20, 1961, the amount of P1,600.00 plus one (1) sack of rice worth P24.00 was
received by the late Antonio Anchuelo and signed by plaintiff Celsa Puncia-Anchuelo (Exh. 10-A). On
August 26, 1962, the remaining P2,876.00 was paid (Exh. 10-B).
"It is the observation of the Court that Exhibit 10-B leave no signature or detailed explanation how the
P2,876.00 was paid. There was just a statement which reads:
'Paid all total
August 26, 1962
OK'
which to the unbiased mind, does not seem to convey that a specific amount was paid. The original of the
promissory note was said to have been returned to the plaintiffs upon redeeming the promissory note before
the date of maturity. Why should such promissory note be returned to the plaintiffs since the Gavino
spouses were the makers of the Promissory Note?
"The Gavino spouses Benito and Juana, sold the land to Martha Gavino for P30,000.00 thereafter, Martha
Gavino sold the property to Juan and Jaime both surnamed Gavino. All the sales made were duly registered
as the sellers and buyers were dealing with titled properties."
xxx xxx xxx
Based on these findings, the trial court promulgated a decision, the dispositive portion of which reads:
"WHEREFORE, the Court finds that the sale between Antonio Anchuelo and Celsa Puncia-Anchuelo on
one hand to Benito Gavino and Juana Euste Gavino on the other hand, is true and valid deed of sale
sufficient to transfer ownership. The subsequent sale to Martha Gavino and the sale thereafter to Jaime and
Juan both surnamed Gavino are likewise declared valid.
"The preponderance of evidence which strongly favors the defendants, the said defendants are jointly and
severally ordered to pay unto the plaintiffs, for the interest of justice, the sum of THREE THOUSAND
EIGHT HUNDRED SEVENTY SIX (P3,876.00) PESOS, the amount which was not received by the
plaintiffs nor paid to them by reason of the promissory note executed by Benito Gavino. After the payment
of said amount, the case should be dismissed. No pronouncement as to damages and costs."
The afore-quoted decision was appealed by the petitioners to the Intermediate Appellate Court.
Except for making the second paragraph of the appealed decision's dispositive portion clearer by correcting
it to read as follows.
"The preponderance of evidence strongly favors the defendants but said defendants are jointly . . ."
the trial court's decision was affirmed by the appellate court.
A motion for reconsideration filed by the petitioners was denied. Hence, this petition. prcd
The main issue in this petition is whether or not the petitioners have established their right to repurchase the
subject parcels of land.
The petitioners invoke two grounds upon which they base their right to repurchase the subject parcels of
land. First, they maintain that the deed of absolute sale (Exhs. A, A-1 and Exh. 16) was fictitious and
without any consideration and that the true and real transaction between the Anchuelo spouses on one hand
and the Gavino spouses on the other hand was a sale with right of repurchase or venta con pacto de retro.
Second, they contend that they have the legal right under Section 119 of Commonwealth Act 141 (Public
Land Law) to repurchase the parcels of land within five (5) years from May 19, 1961 the date when the
deed of absolute sale and agreement to resell was executed.
We find no reason to disturb the findings of the trial court and the appellate court that the disputed deed of
sale reflects the true transaction between the Anchuelo spouses on one hand and the Gavino spouses on the

164
other. This is clearly seen in the execution of public documents evidencing the parties' various transactions
involving the land and leading to the execution of the questioned deed of sale.
The records show that after the Gavinos had redeemed the Anchuelo properties by paying P4,541.39,
P2,104.55, and P7,850.00 to the Development Bank of the Philippines, Philippine National Bank and
Leonor Cayetano, respectively, and had given the Anchuelos P2,105.06 in cash, the Anchuelos executed on
March 15, 1960 a deed of sale with right to repurchase the seven (7) parcels in favor of the Gavinos.
On May 19, 1961, the Gavino spouses executed a "deed of repurchase" in favor of the Anchuelos where the
land was transferred to the latter for P18,000.00. However, on this same day, May 19, 1961, the spouses
Anchuelo converted the deed of sale with right to repurchase dated March 15, 1960 into a Deed of Absolute
Sale for the increased amount of P28,000.00 in favor of the Gavinos. For the difference of P10,000.00, the
Gavinos paid P5,500.00 in cash and P4,500.00 in a promissory note. Three separate payments on the note
were eventually effected. On this same date also, May 19, 1961, the Gavinos executed in turn, an
agreement to resell the properties to the Anchuelos for P28,000.00 but giving the latter not earlier than
nineteen (19) years to redeem the properties.
These public documents are entitled to full faith and credit on their face in the absence of any competent
evidence that their execution was tainted by defects or irregularities that would warrant a declaration of
nullity. (Roman v. Court of Appeals, 112 SCRA 542). The records show that the petitioners have failed to
prove their allegations of a fictitious sale or fraud in the execution of the questioned deed. The findings of
facts of the trial court and the appellate court are supported by the evidence and appear both credible and
logical. LibLex
As earlier stated, on the same day that the absolute deed of sale was executed, the Gavino spouses executed
an Agreement to Resell the same parcels of land, for the same price in favor of the Anchuelo spouses
(Exhibit B). Embodied in the document is the following stipulation:
"That it is a condition of this agreement that the PARTY OF THE SECOND PART, his heirs, assigns and
successors in interests, shall not exercise their right to repurchase said parcels of land subject matter of this
agreement within the period of nineteen (19) years from the date of execution of this instrument but may
only exercise their right after the lapse of said nineteen years from date of the execution of this agreement."
This stipulation clearly violates Article 1601 of the Civil Code, which limits the period for conventional
redemption should there be an agreement to the maximum of ten years from the date of the contract.
(Baluyot v. Venegas, 22 SCRA 412) Where the agreement for repurchase exceeds ten years, we have ruled
that the vendor a retro has ten years from the execution of the contract to exercise his right of redemption
(Baluyot v. Venegas, supra citing Santos v. Heirs of Crisostomo and Tiongson, 41 Phil. 342).
The Agreement to Resell was executed on May 19, 1961. The petitioners, therefore had until May 19, 1971
to exercise their right to redeem the subject parcels of land. The records clearly show that the petitioners
failed to exercise their right to redeem the parcels of land within this ten-year period.
The petitioners also invoke their right to redeem the subject parcels of land within five (5) years from May
19, 1961. This claim is premised on the fact that the seven (7) parcels of land were originally covered by
Original Certificate of Title No. 586 issued by the Register of Deeds, Camarines Sur on February 11, 1953
to Antonio Anchuelo pursuant to Free Patent No. U-2776 issued six days earlier.
The appellate court dismissed this theory in this wise:
"In the first place, this issue was never raised in the trial court. Well settled is the rule that questions not
raised in the lower court cannot be raised for the first time on appeal (Garcia v. Court of Appeals, 102
SCRA 597; Matienzo v. Sevilla, 107 SCRA 276). It would indeed be unfair to the adverse party if an
entirely new issue is raised on appeal as it had no opportunity to introduce evidence to counteract this new
issue. Moreover, there is a different evidence required in order to invoke the right of repurchase under
Section 119 of C.A. No. 141.
"Moreover, the Court finds merit in the contention of the appellees that even granting arguendo that
plaintiffs can still repurchase the land under the Public Land Law, said right had already expired. The
instant complaint was filed eleven years after the date of sale was executed on May 19, 1961. Even the
filing of Civil Cases Nos. 5694 and 6184 cannot suspend the period of redemption. It appears that the
complaint (Exhibit 20) referred to annulment of loan."
We agree.
Section 119 of Commonwealth Act 141 states:

165
"Every reconveyance of land acquired under the free patent homestead provisions, when proper, shall be
subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the date
of the conveyance."
We interpreted this provision in Lee v. Court of Appeals (68 SCRA 198, 204) as follows:
xxx xxx xxx
". . . Article 1616 of the Civil Code of the Philippines, in the absence of an applicable provision in
Commonwealth Act No. 141, furnishes the guide, to wit: 'The vendor cannot avail himself of the right of
repurchase without returning to the vendee the price of the sale . . .'
"Thus, in the case of Angao v. Clavano, 17 Phil. 152, it was held that 'it is not sufficient for the vendor to
intimate or to state to the vendee that the former desires to redeem the thing sold, but he must immediately
thereupon offer to repay the price . . .' Likewise, in several other cases decided by the Supreme Court
(Fructo v. Fuentes, 15 Phil. 362; Retes v. Suelto, 20 Phil. 394; Rosales v. Reyes, et al., 25 Phil. 495; Canuto
v. Mariano, 37 Phil. 840; De la Cruz, et al. v. Resurreccion, et al., 98 Phil. 975; and other cases) where the
right to repurchase was held to have been properly exercised, there was a definite finding of tender of
payment having been made by the vendor.
xxx xxx xxx
"It is clear that the mere sending of letters by vendor Simeon expressing his desire to repurchase the
property without an accompanying tender of redemption price fell short of the requirements of law. Having
failed to properly exercise his right of redemption within the statutory five-year period, the right is lost and
the same can no longer be revived by the filing of an action to compel redemption after the lapse of the
period . . ."
There is nothing in the records nor in the factual findings of the trial court and the Intermediate Appellate
Court to indicate that there was a valid tender of payment of the repurchase price during the five year
period under Section 119 of Commonwealth Act 141 or the ten-year period under Article 1601 of the Civil
Code. This is a factual issue which can no longer be threshed out in a petition for review. The findings of
the lower courts are supported by the evidence. cdphil
The petitioners contend that two civil cases filed ahead of Civil Case No. R-642 (7289) should be deemed
to have suspended the running of the ten-year period to repurchase.
The contention is without merit.
The first case, CC No. 5694 filed on November 5, 1963 was for annulment of loan. There is nothing in the
complaint to indicate that it was filed to exercise the right of repurchase. We cannot read into the complaint
something which is not there.
The second case, CC No. 6184 was entitled annulment of sale and repurchase of property. It was filed on
June 24, 1966 but was dismissed because of the petitioners' failure to prosecute their case.
The complaint which gave rise to the present petition was filed on April 21, 1972. The Anchuelo spouses
averred in this complaint in Civil Case No. R-642 (7289) that "this case is the same as the one filed in
Branch III of this Honorable Court in Civil Case No. 6184 which was dismissed without prejudice,
however, upon suggestion by the Presiding Judge, this case is instituted in order to avail further delays in
the proceedings for relief under Section 38 of the Rules of Court."
The petitioners' averments indicate that not one of the cases earlier filed could suspend the running of the
ten-year period or constitute a valid tender in an effort to repurchase. The petitioners question the deed of
sale dated May 19, 1961 as fraudulent because the agreement was intended to be a mortgage but they were
"induced . . . to execute a supposed deed of sale." The petitioners question the P28,000.00 consideration as
fictitious because the loan they obtained was only P3,000.00. They question the transactions as illegal and
the result of the Gavinos taking advantage of their financial necessity and "mental strains." The complaint
alleges post offers to repurchase for the actual amount of the loan, meaning P3,000.00, which the
respondents allegedly rejected. While the prayer includes a clause "that the plaintiffs be allowed to
repurchase the properties in question," the Anchuelos asked that they be paid P10,000.00 annually by the
Gavinos from 1961 instead of offering any amount to indicate a willingness to buy back the properties. The
theory of the petitioners is that the deed of sale is fraudulent and fictitious. If there was no valid sale, there
is nothing to repurchase.
The inevitable conclusion is that the petitioners did not exercise their right to redeem the subject parcels of
land within the ten-year prescriptive period. It was only after the ten-year period had already lapsed that the
present case was filed. It was only then that the petitioners pursued their right to repurchase the subject

166
parcels of land but without any tender of payment and in terms contradictory of a desire to repurchase.
LLjur
It is to be noted that the lower courts ordered the private respondents to pay the petitioners the amount of
P3,876.00 as the remaining balance of the former in the P28,000.00 price of the subject parcels of land.
This amount was arrived at after deducting P1,600.00 and P24.00 paid by the private respondents to cover
their P4,500.00 promissory note which was part of the P28,000.00 total price for the parcels of land. The
discrepancy is not explained by the evidence. The respondents claim to have paid it as shown by an August
26, 1962 statement which reads "Paid all total August 26, 1962. OK." The trial court ruled that since no
specific amount was mentioned and the note was in the hands of the Anchuelos, it is not proof of payment.
The computation is incorrect as the remainder after deducting P1,624.00 from P4,500.00 is P2,876.00 and
not P3,876.00.
WHEREFORE, the instant petition is hereby DENIED. Except for the MODIFICATION that the private
respondents are ordered to pay the petitioners P2,876.00, the decision of the respondent court is
AFFIRMED.
SO ORDERED.
Fernan, Alampay, Paras and Padilla, JJ ., concur.
Bidin, J ., * took no part.

XXVIII Macadangdang vs CA

[G.R. No. L-49542. September 12, 1980.]


ANTONIO MACADANGDANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and
ELIZABETH MEJIAS, respondents.
DECISION
MAKASIAR, J p:
This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R
which reversed the decision of the Court of First Instance of Davao, Branch IX dismissing the action for
recognition and support filed by respondent Elizabeth Mejias against petitioner Antonio Macadangdang,
and which found minor Rolando to be the illegitimate son of petitioner who was ordered to give a monthly
support of P350.00 until his alleged son reaches the age of majority (p. 47, rec.; p. 10, ROA).

The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin
Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [p. 198, rec.]). She allegedly had
intercourse with petitioner Antonio Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in
CC No. 109). She also alleges that due to the affair, she and her husband separated in 1967 (p. 63, t.s.n.,
Sept. 21, 1972). On October 30, 1967 (7 months or 210 days following the illicit encounter), she gave birth
to a baby boy who was named Rolando Macadangdang in baptismal rites held on December 24, 1967
(Annex "A", List of Exhibits).
The records also disclose that on April 25, 1972, respondent; (then plaintiff) filed a complaint for
recognition and support against petitioner (then defendant) with the Court of First Instance of Davao,
Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA).
Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim
and praying for its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain
stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA).
Correspondingly, upon agreement of the parties, an amended complaint was filed by plaintiff on October
17, 1972 (pp. 7, 8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower court dismissed the complaint. The decision
invoked positive provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, rec.). In her appeal,
appellant assigned these errors:
1. "The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and
256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court" (p. 18, rec.);

167
2. "The Honorable Trial Court erred in holding that plaintiff-appellant cannot validly question the
legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal husband as a
party in the instant case" (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p.
47, rec.) and thus declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of
merit. (p. 56, rec.).
Hence, petitioner filed this petition on January 12, 1979.
The issues boil down to:
1. Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses
Elizabeth Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that would bastardize her child without giving her
husband, the legally presumed father, an opportunity to be heard.
The crucial point that should be emphasized and should be straightened out from the very beginning is the
fact that respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by
reason thereof, she and her husband separated. This fact surfaced from the testimony of respondent herself
in the hearing of September 21, 1972 when this case was still in the lower court. The pertinent portions of
her testimony are thus quoted:
"By Atty. Fernandez:
"Q — What did you feel as a result of the incident where Antonio Macadangdang used a pill and took
advantage of your womanhood?
"A — I felt worried, mentally shocked and humiliated.
"Q — If these feelings: worries, mental shock and humiliation, if estimated in monetary figures, how much
will be the amount?
"A — Ten thousand pesos, sir.
"Q — And because of the incident, what happened to your marriage with Crispin Anahaw?
xxx xxx xxx
WITNESS:
A — We separated, sir". (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis supplied).
From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given
with spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning
or interpretation of the word "incident" other than that of the initial contact between petitioner and
respondent. Even a layman would understand the clear sense of the question posed before respondent and
her categorical and spontaneous answer which does not leave any room for interpretation. It must be noted
that the very question of her counsel conveys the assumption of an existing marriage between respondent
and her husband.
The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot
therefore be considered conclusive and binding on this Court. It is based solely on the testimony of
respondent which is self-serving. Nothing in the records shows that her statement was confirmed or
corroborated by another witness and the same cannot be treated as borne out by the record or that which is
based on substantial evidence. Respondent's testimony, by itself, is insufficient without further evidence. It
is not even confirmed by her own husband, who was not impleaded.
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings
of facts of the Court of Appeals are conclusive on the parties and on the Supreme Court, unless (1) the
conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2) the inference made
is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension
of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the
admission of both appellant and appellee; (6) the findings of facts of the Court of Appeals are contrary to
those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on
which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs
are not disputed by the respondents; and (9) when the finding of facts of the Court of Appeals is premised
on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety
Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967);
Ramos vs. Pepsi-Cola Bottling Company of the Philippines, L-22533, 19 SCRA 289 (1967); italics
supplied].

168
Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions
to the general rule This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling
Company, etc., supra.
In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30, 1979),
which petitioner aptly invokes, this Court thus emphasized:
". . . But what should not be ignored by lawyers and litigants alike is the more basic principle that the
'findings of fact' described as 'final' or 'conclusive' are those borne out by the record or those which are
based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of Appeals. There are exceptions to the
general rule, where we have reviewed the findings of fact of the Court of Appeals . ." (emphasis supplied).
The following provisions of the Civil Code and the Rules of Court should be borne in mind:
"Art. 255. Children born after one hundred and eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
"Against this presumption, no evidence shall be admitted other than that of the physical impossibility of the
husband's having access to his wife within the first one hundred and twenty days of the three hundred
which preceded the birth of the child.
"This physical impossibility may be caused:
"(1) By the impotence of the husband;
"(2) By the fact that the husband and wife were living separately, in such a way that access was not
possible;
"(3) By the serious illness of the husband.
"Art. 256. The child shall be presumed legitimate, although the mother may have declared against
its legitimacy or may have been sentenced as an adulteress.
"Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but
there was no physical impossibility of access between her and her husband as set forth in article 255, the
child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons, that the
child is that of the husband. For the purposes of this article, the wife's adultery need not be proved in a
criminal case.
xxx xxx xxx
"Sec. 4. Quasi-conclusive presumptions of legitimacy —
"(a) Children born after one hundred eighty days following the celebration of the marriage, and before
three hundred days following its dissolution or the separation of the spouses shall be presumed legitimate.
"Against this presumption no evidence shall be admitted other than that of the physical impossibility of the
husband's having access to his wife within the first one hundred and twenty days of the three hundred
which preceded the birth of the child.
"This physical impossibility may be caused:
"[1] By the impotence of the husband;
"[2] By the fact that the husband and the wife were living separately, in such a way that access was not
possible;
"[3] By the serious illness of the husband;
"(b) The child shall be presumed legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
"(c) Should the wife commit adultery at or about the time of the conception of the child, but there was
no physical impossibility of access between her and her husband as set forth above, the child is presumed
legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of the husband. For
the purpose of the rule, the wife's adultery need not be proved in a criminal case.
. . ." Rule 131, Rules of Court).
Whether or not respondent and her husband were separated would be immaterial to the resolution of the
status of the child Rolando. What should really matter is the fact that during the initial one hundred twenty
days of the three hundred which preceded the birth of the aforenamed child, no concrete or even substantial
proof was presented to establish physical impossibility of access between respondent and her spouse. From
her very revealing testimony, respondent declared that she was bringing two sacks of rice to Samal for her
children; that her four children by her husband lived in her mother's house in the said town; that her alleged
estranged husband also lived in her mother's place (p. 73, rec.: pp. 21 & 22, 64 & 66, t.s.n., Sept. 21, 1972).

169
It should also be noted that even during her affair with petitioner and right after her delivery, respondent
went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia Avila (the
boy's yaya), the following came out:
"Q Why were you taking care of the child Rolando, where was Elizabeth Mejias?
"A Because Elizabeth went to her parents in Samal Davao del Norte for treatment because she had a
relapse" (p. 13, t.s.n., of Sept. 21, 1972).
From the foregoing and since respondent and her husband continued to live in the same province, the fact
remains that there was always the possibility of access to each other. As has already been pointed out,
respondent's self-serving statements were never corroborated nor confirmed by any other evidence, more
particularly that of her husband. Cdpr
The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after
March, 1967 when the "incident" or first illicit intercourse between respondent and petitioner took place,
and also, seven months from their separation (if there really was a separation). It must be noted that as of
March, 1967, respondent and Crispin Anahaw had already four children; hence, they had been married
years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando came more than one hundred
eighty 180 days following the celebration of the said marriage and before 300 days following the alleged
separation between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the
legitimate son of respondent and her husband.
The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner
and respondent is another proof that the said child was not of petitioner since, from all indications, he came
out as a normal, full term baby.
It must be stressed that the child under question has no birth certificate nor any other official record of
birth. His birth is attested to merely by oral declarations of witnesses and by a Certificate of Baptism
(attached in the List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note
again that he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the time
difference is clearly 7 months. The baby Rolando could have been born prematurely. But such is not the
case. Respondent underwent a normal nine-month pregnancy. Respondent herself and the yaya, Patrocinia
Avila, declared that the baby was born in the rented house at Carpenter Street, which birth was obviously
normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for by said
yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between
15 days and 2 months of age, respondent left him to the care of the yaya when the former left for Samal for
treatment and returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated facts,
it can be indubitably said that the child was a full-term baby at birth, normally delivered, and raised
normally by the yaya. If it were otherwise or if he were born prematurely, he would have needed special
care like being placed in an incubator in a clinic or hospital and attended to by a physician, not just a mere
yaya. These all point to the fact that the baby who was born on October 30, 1967 or 7 months from the first
sexual encounter between petitioner and respondent was conceived as early as January, 1967. How then
could he be the child of petitioner?
In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal
certificates. It thus ruled that while baptismal and marriage certificates may be considered public
documents, they are evidence only to prove the administration of the sacraments on the dates therein
specified — but not the veracity of the states or declarations made therein with respect to his kinsfolk
and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus vs. Novero (L-
22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in conformity with the rites
of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the
declarations and statements contained in the certificate that concern the relationship of the person baptized.
Such declarations and statements, in order that their truth may be admitted, must indispensably be shown
by proof recognized by law.
The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption
becomes conclusive in the absence of proof that there was physical impossibility of access between the
spouses in the first 120 days of the 300 which preceded the birth of the child. This presumption is actually
quasi-conclusive and may be rebutted or refuted by only one evidence — the physical impossibility of
access between husband and wife within the first 120 days of the 300 which preceded the birth of the child.
This physical impossibility of access may be caused by any of these:

170
1. Impotence of the husband;
2. Living separately in such a way that access was impossible; and
3. Serious illness of the husband.
This presumption of legitimacy is based on the assumption that there is sexual union in marriage,
particularly during the period of conception. Hence, proof of the physical impossibility of such sexual
union prevents the application of the presumption (Tolentino, Commentaries & Jurisprudence on the Civil
Code, Vol. I, p. 513 citing Bevilaqua, Familia. 311).
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access as could have enabled the husband to be the father of the child.
Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is
rebutted by evidence to the contrary; where sexual intercourse is presumed or proved, the husband must be
taken be the father of the child (Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the
husband to the wife during the period of conception. The law expressly refers to physical impossibility.
Hence, a circumstance which makes sexual relations improbable, cannot defeat the presumption of
legitimacy; but it may be proved as a circumstance to corroborate proof of physical impossibility of access
(Tolentino, citing Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's
Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency
is the physical inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the
inability to procreate, whereas, impotence refers to the physical inability to perform the act of sexual
intercourse. In respect of the impotency of the husband of the mother of a child, to overcome the
presumption of legitimacy based on conception or birth in wedlock or to show illegitimacy, it has been held
or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and convincing,
irresistible or positive (S.C. — Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50).
The separation between the spouses must be such as to make sexual access impossible. This may take place
when they reside in different countries or provinces, and they have never been together during the period of
conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of
conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison
regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his having sexual
intercourse with his wife; such as, when because of a sacroiliac injury, he was placed in a plaster cast, and
it was inconceivable to have sexual intercourse without the most severe pain (Tolentino, citing
Commissioner vs. Kotel, 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced temporary or
permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is
advanced in a man does not necessarily mean that he is incapable of sexual intercourse. There are cases
where persons suffering from tuberculosis can do the carnal act even in the most crucial stage of health
because then they seemed to be more inclined to sexual intercourse. The fact that the wife had illicit
intercourse with a man other than her husband during the initial period, does not preclude cohabitation
between said husband and wife.
Significantly, American courts have made definite pronouncements or rulings on the issues under
consideration.
The policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at
the time of conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and
there is the presumption that a child so born is the child of the husband and is legitimate even though the
wife was guilty of infidelity during the possible period of conception (N.Y. Dieterich vs. Dieterich, 278
N.Y.S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18, 19 & 20).
So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of
procreation or was absent beyond the four seas, that is, absent from the realm, during the whole period of
the wife's pregnancy (10 C.J.S. p. 20). LibLex
The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and
wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26
Ala. App. 430) and this includes children born after the separation [10 C.J.S. pp. 23: 24; italics supplied].

171
It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate
although the mother may have declared against its legitimacy or may have been sentenced as an adulteress
has been adopted for two solid reasons. First, in a fit of anger or to arouse jealousy in the husband, the wife
may have made this declaration (Powell State, 95 N.E., 660). Second, the article is established as a
guaranty in favor of the children whose condition should not be under the mercy of the passions of their
parents. The husband whose honor if offended, that is, being aware of his wife's adultery, may obtain from
the guilty spouse by means of coercion, a confession against the legitimacy of the child which may really
be only a confession of her guilt. Or the wife, out of vengeance and spite, may declare the child as not her
husband's although the statement be false. But there is another reason which is more powerful, demanding
the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be
determined when a woman cohabits during the same period with two men, by whom the child was
begotten, it being possible that it be the husband himself (Manresa, Vol. 1, pp. 503-504).
Hence, in general, good morals and public policy require that a mother should not be permitted to assert the
illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. — Flint vs. Pierce,
136 N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent,
nor merely upon evidence that no actual act of sexual intercourse occurred between husband and wife at or
about the time the wife became pregnant. Thus, where the husband denies having any intercourse with his
wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 168, 191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in
itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the child is
that of the husband (Tolentino citing 1 Vera 170; 4 Borja 23-24).
It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and
scandalous, not only because it reveals immoral conduct on her part, but also because of the effect it may
have on the child, who is in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur.
Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and
mother is not admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access
to his wife (Iowa — Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that 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 or
economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314).
The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged
father, who is the husband of the mother and can be exercised only by him or his heirs, within a fixed time,
and in certain cases, and only in a direct suit brought for the purpose (La — Ducasse vs. Ducasse, 45 So.
565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest
the identity of the child (La — Eloi vs. Mader, 1 Rob. 581, 38 Am. D. 192).
Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be
admissible in evidence; but the general rule now is that they are inadmissible to bastardize the child,
regardless of statutory provisions of viating incompetency on the ground of interest, or the fact that the
conception was antenuptial. The rule is said to be founded in decency, morality and public policy (Wallace
vs. Wallace, 137 Iowa 37, 114 N.W. 527, 14 L.R.A. [N.S] 544, Am. St. Rep. 253, 15 Ann. Cas. 761, Am.
Jur. 26). cdphil
From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason
to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent
man, having had four children with his wife; that even if he and respondent were even living separately
(which the latter failed to prove anyway) and assuming, for argument's sake, that they were really
separated, there was all the possibility of physical access to each other considering their proximity to each
other and considering further that respondent still visited and recuperated in her mother's house in Samal
where her spouse resided with her children. Moreover, Crispin Anahaw did not have any serious illness or
any illness whatsoever which would have rendered him incapable of having sexual act with his wife. No
substantial evidence whatsoever was brought out to negate the aforestated facts.

172
Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer" after her
flings. And she deliberately did not include nor present her husband in this case because she could not risk
her scheme. She had to be certain that such scheme to bastardize her own son for her selfish motives would
not be thwarted.
This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the
illegitimate child of petitioner. From all indications, respondent has paraded herself as a woman of highly
questionable character. A married woman who, on first meeting, rides with a total stranger who is married
towards nightfall, sleeps in his house in the presence of his children, then lives with him after their initial
sexual contact — the atmosphere for which she herself provided — is patently immoral and hedonistic.
Although her husband was a very potent man, she readily indulged in an instant illicit relationship with a
married man she had never known before.
Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after his birth, she
left him in the care of a yaya for several months. This is not the normal instinct and behavior of a mother
who has the safety and welfare of her child foremost in her mind. The filing of this case itself shows how
she is capable of sacrificing the psycho-social future (reputation) of the child in exchange for some
monetary consideration. This is blatant shamelessness.
It also appears that her claim against petitioner is a disguised attempt to evade the responsibility and
consequence of her reckless behavior at the expense of her husband, her illicit lover and above all — her
own son. For this Court to allow, much less consent to, the bastardization of respondent's son would give
rise to serious and far-reaching consequences on society. This Court will not tolerate scheming married
women who would indulge in illicit affairs with married men and then exploit the children born during such
immoral relations by using them to collect from such moneyed paramours. This would be the vilest form of
wrecking the stability of two families. This would be a severe assault on morality.
And as between the paternity by the husband and the paternity by the paramour, all the circumstances being
equal, the law is inclined to follow the former; hence, the child is thus given the benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus: LLphil
"Art. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or fact, leans toward the validity of marriage, the indissolubility of the marriage bonds,
the legitimacy of children, the community of property during marriage, the authority of parents over the
children, and the validity of defense for any member of family in case of unlawful aggression."
WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS
RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSE AND SET ASIDE. COSTS
AGAINST PRIVATE RESPONDENT.
SO ORDERED.
Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

Section 24
XXIX Zalamea vs CA
SPOUSES CESAR & SUTHIRA ZALAMEA AND LIANA ZALAMEA, petitioners, vs. HONORABLE
COURT OF APPEALS AND TRANSWORLD AIRLINES, INC., respondents.
Sycip, Salazar, Hernandez, Gatmaitan for petitioners.
Quisumbing, Torres & Evangelista for private-respondent.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FOREIGN LAWS, HOW PROVED. — That there was fraud or
bad faith on the part of respondent airline when it did not allow petitioners to board their flight for Los
Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedly authorizing
overbooking has never been proved. Foreign laws do not prove themselves nor can the courts take judicial
notice of them. Like any other fact, they must be alleged and proved. Written law may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody of the record, or by
his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made
by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office.
2. ID.; ID.; ID.; U.S. LAW OR REGULATION AUTHORIZING OVERBOOKING, NOT
PROVED BY MERE TESTIMONY OF RESPONDENT'S AIRLINE CUSTOMER SERVICE AGENT.

173
— Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent,
in her deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics
Board allows overbooking. Aside from said statement, no official publication of said code was presented as
evidence. Thus, respondent court's finding that overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.
3. CIVIL LAW; APPLICATION OF LAWS; CONTRACT GOVERNED BY LAWS OF PLACE
WHERE EXECUTED; CASE AT BAR. — Even if the claimed U.S. Code of Federal Regulations does
exist, the same is not applicable to the case at bar in accordance with the principle of lex loci contractus
which requires that the law of the place where the airline ticket was issued should be applied by the court
where the passengers are residents and nationals of the forum and the ticket is issued in such State by the
defendant airline. Since the tickets were sold and issued in the Philippines, the applicable law in this case
would be Philippine law.
4. ID.; DAMAGES; OVERBOOKING AMOUNTS TO BAD FAITH ENTITLING PASSENGERS
TO AWARD OF MORAL DAMAGES. — Existing jurisprudence explicitly states that overbooking
amounts to bad faith, entitling the passengers concerned to an award of moral damages. (Alitalia Airways
v. Court of Appeals, G.R. No. 77011, 187 SCRA 763 [1990]; Korean Airlines Co., Ltd. v. Court of
Appeals, G.R. No. 61418, 154 SCRA 211 [1987])
5. ID.; ID.; BREACH OF CONTRACT OF CARRIAGE AMOUNTS TO BAD FAITH. — In fact,
existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad faith.
(Pan American World Airways, Inc. v. Intermediate Appellate Court, G.R. No. 74442, 153 SCRA 521
[1987]) A contract to transport passengers is quite different in kind and degree from any other contractual
relation. (Zulueta v. Pan American World Airways, Inc., G.R. No. L-28589, 43 SCRA 397 [1972]
6. ID.; ID.; NON-INCORPORATION OF STIPULATIONS ON OVERBOOKING AND IN NOT
INFORMING PASSENGERS OF ITS POLICY GIVING LESS PRIORITY TO DISCOUNTED TICKET,
CONSTITUTE BAD FAITH; PASSENGERS ENTITLED TO BOTH MORAL AND EXEMPLARY
DAMAGES; CASE AT BAR. — Even on the assumption that overbooking is allowed, respondent TWA is
still guilty of bad faith in not informing its passengers beforehand that it could breach the contract of
carriage even if they have confirmed tickets if there was overbooking. Respondent TWA should have
incorporated stipulations on overbooking on the tickets issued or to properly inform its passengers about
these policies so that the latter would be prepared for such eventuality or would have the choice to ride with
another airline. Moreover, respondent TWA was also guilty of not informing its passengers of its alleged
policy of giving less priority to discounted tickets. It is respondent TWA's position that the practice of
overbooking and the airline system of boarding priorities are reasonable policies, which when implemented
do not amount to bad faith. But the issue raised in this case is not the reasonableness of said policies but
whether or not said policies were incorporated or deemed written on petitioners' contracts of carriage.
Respondent TWA failed to show that there are provisions to that effect. Neither did it present any argument
of substance to show that petitioners were duly apprised of the overbooked condition of the flight or that
there is a hierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right
to rely upon the assurance of respondent TWA, thru its agent in Manila, then in New York, that their tickets
represented confirmed seats without any qualification. The failure of respondent TWA to so inform them
when it could easily have done so thereby enabling respondent to hold on to them as passengers up to the
last minute amounts to bad faith. Evidently, respondent TWA placed its self-interest over the rights of
petitioners under their contracts of carriage. Such conscious disregard of petitioners' rights makes
respondent TWA liable for moral damages. To deter breach of contracts by respondent TWA in similar
fashion in the future, we adjudge respondent TWA liable for exemplary damages, as well. However, the
award for moral and exemplary damages by the trial court is excessive in the light of the fact that only
Suthira and Liana Zalamea were actually "bumped off." An award of P50,000.00 moral damages and
another P50,000.00 exemplary damages would suffice under the circumstances obtaining in the instant
case.
7. ID.; ID.; PASSENGER ENTITLED TO REIMBURSEMENT FOR COST OF TICKETS
BOUGHT FOR ANOTHER FLIGHT ON ANOTHER AIRLINE; CASE AT BAR. — The respondent
court erred, however, in not ordering the refund of the cost of the American Airlines tickets purchased and
used by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana were
constrained to take the American Airlines flight to Los Angeles not because they "opted not to use their
TWA tickets on another TWA flight" but because respondent TWA could not accommodate them either on

174
the next TWA flight which was also fully booked. The purchase of the American Airlines tickets by
petitioners Suthira and Liana was the consequence of respondent TWA's unjustifiable breach of its
contracts of carriage with petitioners. In accordance with Article 2201, New Civil Code, respondent TWA
should, therefore, be responsible for all damages which may be reasonably attributed to the non-
performance of its obligation. In the previously cited case of Alitalia Airways v. Court of Appeals, this
Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to buy
for a flight on another airline. Thus, instead of simply being refunded for the cost of the unused TWA
tickets, petitioners should be awarded the actual cost of their flight from New York to Los Angeles.
8. ID.; ID.; ATTORNEY'S FEES; RECOVERABLE WHERE A PARTY WAS COMPELLED TO
LITIGATE TO PROTECT HIS RIGHTS. — The award to petitioners of attorney's fees is also justified
under Article 2208(2) of the Civil Code which allows recovery when the defendant's act or omission has
compelled plaintiff to litigate or to incur expenses to protect his interest.
DECISION
NOCON, J p:
Disgruntled over TransWorld Airlines, Inc.'s refusal to accommodate them in TWA Flight 007 departing
from New York to Los Angeles on June 6, 1984 despite possession of confirmed tickets, petitioners filed an
action for damages before the Regional Trial Court of Makati, Metro Manila, Branch 145. Advocating
petitioners' position, the trial court categorically ruled that respondent TransWorld Airlines (TWA)
breached its contract of carriage with petitioners and that said breach was "characterized by bad faith." On
appeal, however, the appellate court found that while there was a breach of contract on respondent TWA's
part, there was neither fraud nor bad faith because under the Code of Federal Regulations by the Civil
Aeronautics Board of the United States of America it is allowed to overbook flights. LLpr
The factual backdrop of the case is as follows:
Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their daughter, Liana Zalamea, purchased
three (3) airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. for a flight from
New York to Los Angeles on June 6, 1984. The tickets of petitioners-spouses were purchased at a discount
of 75% while that of their daughter was a full fare ticket. All three tickets represented confirmed
reservations.
While in New York, on June 4, 1984, petitioners received notice of the reconfirmation of their reservations
for said flight. On the appointed date, however, petitioners checked in at 10:00 a.m., an hour earlier than
the scheduled flight at 11:00 a.m. but were placed on the wait-list because the number of passengers who
had checked in before them had already taken all the seats available on the flight. Liana Zalamea appeared
as No. 13 on the wait-list while the two other Zalameas were listed as "No. 34, showing a party of two."
Out of the 42 names on the wait-list, the first 22 names were eventually allowed to board the flight to Los
Angeles, including petitioner Cesar Zalamea. The two others, on the other hand, at No. 34, being ranked
lower than 22, were not able to fly. As it were, those holding full-fare tickets were given first priority
among the wait-listed passengers. Mr. Zalamea, who was holding the full-fare ticket of his daughter, was
allowed to board the plane; while his wife and daughter, who presented the discounted tickets were denied
boarding. According to Mr. Zalamea, it was only later when he discovered that he was holding his
daughter's full-fare ticket. LLphil
Even in the next TWA flight to Los Angeles Mrs. Zalamea and her daughter, could not be accommodated
because it was also fully booked. Thus, they were constrained to book in another flight and purchased two
tickets from American Airlines at a cost of Nine Hundred Eighteen ($918.00) Dollars.
Upon their arrival in the Philippines, petitioners filed an action for damages based on breach of contract of
air carriage before the Regional Trial Court of Makati, Metro Manila, Branch 145. As aforesaid, the lower
court ruled in favor of petitioners in its decision 1 dated January 9, 1989 the dispositive portion of which
states as follows:
"WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiffs the following
amounts:
"(1) US $918.00, or its peso equivalent at the time of payment, representing the price of the tickets
bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from
New York City;
"(2) US $159.49, or its peso equivalent at the time of payment, representing the price of Suthira
Zalamea's ticket for TWA Flight 007; Cdpr

175
"(3) Eight Thousand Nine Hundred Thirty-four Pesos and Fifty Centavos (P8,934.50), Philippine
Currency, representing the price of Liana Zalamea's ticket for TWA Flight 007;
"(4) Two Hundred Fifty Thousand Pesos (250,000.00), Philippine Currency, as moral damages for all
the plaintiffs;
"(5) One Hundred Thousand Pesos (P100,000.00), Philippine Currency, as and for attorney's fees; and
"(6) The costs of suit.
"SO ORDERED." 2
On appeal, the respondent Court of Appeals held that moral damages are recoverable in a damage suit
predicated upon a breach of contract of carriage only where there is fraud or bad faith. Since it is a matter
of record that overbooking of flights is a common and accepted practice of airlines in the United States and
is specifically allowed under the Code of Federal Regulations by the Civil Aeronautics Board, no fraud nor
bad faith could be imputed on respondent TransWorld Airlines.
Moreover, while respondent TWA was remiss in not informing petitioners that the flight was overbooked
and that even a person with a confirmed reservation may be denied accommodation on an overbooked
flight, nevertheless it ruled that such omission or negligence cannot under the circumstances be considered
to be so gross as to amount to bad faith.
Finally, it also held that there was no bad faith in placing petitioners in the wait-list along with forty-eight
(48) other passengers where full-fare first class tickets were given priority over discounted tickets. cdphil
The dispositive portion of the decision of respondent Court of Appeals 3 dated October 25, 1991 states as
follows:.
"WHEREFORE, in view of all the foregoing, the decision under review is hereby MODIFIED in that the
award of moral and exemplary damages to the plaintiffs is eliminated, and the defendant-appellant is
hereby ordered to pay the plaintiffs the following amounts:
"(1) US$159.49, or its peso equivalent at the time of payment, representing the price of Suthira
Zalamea's ticket for TWA Flight 007;
"(2) US$159.49, or its peso equivalent at the time of payment, representing the price of Cesar
Zalamea's ticket for TWA Flight 007;
"(3) P50,000.00 as and for attorney's fees.
"(4) The costs of suit.
"SO ORDERED." 4
Not satisfied with the decision, petitioners raised the case on petition for review on certiorari and alleged
the following errors committed by the respondent Court of Appeals, to wit: cdrep
I.
". . . IN HOLDING THAT THERE WAS NO FRAUD OR BAD FAITH ON THE PART OF
RESPONDENT TWA BECAUSE IT HAS A RIGHT TO OVERBOOK FLIGHTS.
II.
". . . IN ELIMINATING THE AWARD OF EXEMPLARY DAMAGES.
III.
". . . IN NOT ORDERING THE REFUND OF LIANA ZALAMEA'S TWA TICKET AND PAYMENT
FOR THE AMERICAN AIRLINES TICKETS." 5
That there was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board
their flight for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation
allegedly authorizing overbooking has never been proved. Foreign laws do not prove themselves nor can
the courts take judicial notice of them. Like any other fact, they must be alleged and proved. 6 Written law
may be evidenced by an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody.
The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. 7
Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent, in
her deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics Board
allows overbooking. Aside from said statement, no official publication of said code was presented as
evidence. Thus, respondent court's finding that overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact. Cdpr

176
Even if the claimed U.S. Code of Federal Regulations does exist, the same is not applicable to the case at
bar in accordance with the principle of lex loci contractus which requires that the law of the place where the
airline ticket was issued should be applied by the court where the passengers are residents and nationals of
the forum and the ticket is issued in such State by the defendant airline. 8 Since the tickets were sold and
issued in the Philippines, the applicable law in this case would be Philippine law.
Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the passengers
concerned to an award of moral damages. In Alitalia Airways v. Court of Appeals, 9 where passengers with
confirmed bookings were refused carriage on the last minute, this Court held that when an airline issues a
ticket to a passenger confirmed on a particular flight, on a certain date, a contract of carriage arises, and the
passenger has every right to expect that he would fly on that flight and on that date. If he does not, then the
carrier opens itself to a suit for breach of contract of carriage. Where an airline had deliberately
overbooked, it took the risk of having to deprive some passengers of their seats in case all of them would
show up for check in. For the indignity and inconvenience of being refused a confirmed seat on the last
minute, said passenger is entitled to an award of moral damages.
Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals, 10 where private respondent was not allowed
to board the plane because her seat had already been given to another passenger even before the allowable
period for passengers to check in had lapsed despite the fact that she had a confirmed ticket and she had
arrived on time, this Court held that petitioner airline acted in bad faith in violating private respondent's
rights under their contract of carriage and is therefore liable for the injuries she has sustained as a result.
cdll
In fact, existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad
faith. In Pan American World Airways, Inc. v. Intermediate Appellate Court, 11 where a would-be
passenger had the necessary ticket, baggage claim and clearance from immigration all clearly and
unmistakably showing that she was indeed a confirmed passenger and that she was, in fact, included in the
passenger manifest of said flight, and yet was denied accommodation in said flight, this Court did not
hesitate to affirm the lower court's finding awarding her damages.
A contract to transport passengers is quite different in kind and degree from any other contractual relation.
So ruled this Court in Zulueta v. Pan American World Airways, Inc. 12 This is so, for a contract of carriage
generates a relation attended with public duty — a duty to provide public service and convenience to its
passengers which must be paramount to self-interest or enrichment. Thus, it was also held that the switch of
planes from Lockheed 1011 to a smaller Boeing 707 because there were only 138 confirmed economy class
passengers who could very well be accommodated in the smaller plane, thereby sacrificing the comfort of
its first class passengers for the sake of economy, amounts to bad faith. Such inattention and lack of care
for the interest of its passengers who are entitled to its utmost consideration entitles the passenger to an
award of moral damages. 13
Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not
informing its passengers beforehand that it could breach the contract of carriage even if they have
confirmed tickets if there was overbooking. Respondent TWA should have incorporated stipulations on
overbooking on the tickets issued or to properly inform its passengers about these policies so that the latter
would be prepared for such eventuality or would have the choice to ride with another airline. LibLex
Respondent TWA contends that Exhibit I, the detached flight coupon upon which were written the name of
the passenger and the points of origin and destination, contained such a notice. An examination of Exhibit I
does not bear this out. At any rate, said exhibit was not offered for the purpose of showing the existence of
a notice of overbooking but to show that Exhibit I was used for Flight 007 in first class of June 11, 1984
from New York to Los Angeles.
Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving
less priority to discounted tickets. While the petitioners had checked in at the same time, and held
confirmed tickets, yet, only one of them was allowed to board the plane ten minutes before departure time
because the full-fare ticket he was holding was given priority over discounted tickets. The other two
petitioners were left behind.
It is respondent TWA's position that the practice of overbooking and the airline system of boarding
priorities are reasonable policies, which when implemented do not amount to bad faith. But the issue raised
in this case is not the reasonableness of said policies but whether or not said policies were incorporated or
deemed written on petitioners' contracts of carriage. Respondent TWA failed to show that there are
provisions to that effect. Neither did it present any argument of substance to show that petitioners were

177
duly apprised of the overbooked condition of the flight or that there is a hierarchy of boarding priorities in
booking passengers. It is evident that petitioners had the right to rely upon the assurance of respondent
TWA, thru its agent in Manila, then in New York, that their tickets represented confirmed seats without any
qualification. The failure of respondent TWA to so inform them when it could easily have done so thereby
enabling respondent to hold on to them as passengers up to the last minute amounts to bad faith. Evidently,
respondent TWA placed its self-interest over the rights of petitioners under their contracts of carriage. Such
conscious disregard of petitioners' rights makes respondent TWA liable for moral damages. To deter breach
of contracts by respondent TWA in similar fashion in the future, we adjudge respondent TWA liable for
exemplary damages, as well. LexLib
Petitioners also assail the respondent court's decision not to require the refund of Liana Zalamea's ticket
because the ticket was used by her father. On this score, we uphold the respondent court. Petitioners had
not shown with certainty that the act of respondent TWA in allowing Mr. Zalamea to use the ticket of her
daughter was due to inadvertence or deliberate act. Petitioners had also failed to establish that they did not
accede to said arrangement. The logical conclusion, therefore, is that both petitioners and respondent TWA
agreed, albeit impliedly, to the course of action taken.
The respondent court erred, however, in not ordering the refund of the cost of the American Airlines tickets
purchased and used by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana
were constrained to take the American Airlines flight to Los Angeles not because they "opted not to use
their TWA tickets on another TWA flight" but because respondent TWA could not accommodate them
either on the next TWA flight which was also fully booked. 14 The purchase of the American Airlines
tickets by petitioners Suthira and Liana was the consequence of respondent TWA's unjustifiable breach of
its contracts of carriage with petitioners. In accordance with Article 2201, New Civil Code, respondent
TWA should, therefore, be responsible for all damages which may be reasonably attributed to the non-
performance of its obligation. In the previously cited case of Alitalia Airways v. Court of Appeals, 15 this
Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to buy
for a flight on another airline. Thus, instead of simply being refunded for the cost of the unused TWA
tickets, petitioners should be awarded the actual cost of their flight from New York to Los Angeles. On this
score, we differ from the trial court's ruling which ordered not only the reimbursement of the American
Airlines tickets but also the refund of the unused TWA tickets. To require both prestations would have
enabled petitioners to fly from New York to Los Angeles without any fare being paid. LLjur
The award to petitioners of attorney's fees is also justified under Article 2208(2) of the Civil Code which
allows recovery when the defendant's act or omission has compelled plaintiff to litigate or to incur expenses
to protect his interest. However, the award for moral and exemplary damages by the trial court is excessive
in the light of the fact that only Suthira and Liana Zalamea were actually "bumped off." An award of
P50,000.00 moral damages and another P50,000.00 exemplary damages would suffice under the
circumstances obtaining in the instant case.
WHEREFORE, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is
hereby MODIFIED to the extent of adjudging respondent TransWorld Airlines to pay damages to
petitioners in the following amounts, to wit:
(1) US$918.00 or its peso equivalent at the time of payment representing the price of the tickets
bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from
New York City;
(2) P50,000.00 as moral damages;
(3) P50,000.00 as exemplary damages;
(4) P50,000.00 as attorney's fees; and
(5) Costs of suit. LLjur
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado and Puno, JJ ., concur.

XXX Northwest vs ca

NORTHWEST ORIENT AIRLINES, INC., petitioner, vs. COURT OF APPEALS and C.F. SHARP &
COMPANY, INC., respondents.
SYLLABUS

178
1. REMEDIAL LAW; CIVIL PROCEDURE; FOREIGN JUDGMENT; EFFECT; RULE IN CASE
OF AN ACTION IN PERSONAM. — A foreign judgment is presumed to be valid and binding in the
country from which it comes, until the contrary is shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein. Under Section 50, Rule 39 of the Rules of Court, a
judgment in an action in personam of a tribunal of a foreign country having jurisdiction to pronounce the
same is presumptive evidence of a right as between the parties and their successors-in-interest by a
subsequent title. The judgment may, however, be assailed by evidence of want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a
court, whether of the Philippines or elsewhere, enjoys the presumption that it was acting in the lawful
exercise of jurisdiction and has regularly performed its official duty. Consequently, the party attacking a
foreign judgment has the burden of overcoming the presumption of its validity. Being the party challenging
the judgment rendered by the Japanese court, SHARP had the duty to demonstrate the invalidity of such
judgment. In an attempt to discharge that burden, it contends that the extraterritorial service of summons
effected at its home office in the Philippines was not only ineffectual but also void, and the Japanese Court
did not, therefore, acquire jurisdiction over it.
2. ID.; ID.; ID.; ID.; ID.; DUTY OF THE PARTY ASSAILING THEREOF. — It is settled that
matters of remedy and procedure such as those relating to the service of process upon a defendant are
governed by the lex fori or the internal law of the forum. In this case, it is the procedural law of Japan
where the judgment was rendered that determines the validity of the extraterritorial service of process on
SHARP. As to what this law is, is a question of fact, not of law. It may not be taken judicial notice of and
must be pleaded and proved like any other fact. Sections 24 and 25, Rule 132 of the Rules of Court provide
that it may be evidenced by an official publication or by a duly attested or authenticated copy thereof. It
was then incumbent upon SHARP to present evidence as to what that Japanese procedural law is and to
show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the presumption of
validity and regularity of the service of summons and the decision thereafter rendered by the Japanese court
must stand.
3. ID.; ID.; SUMMONS; SERVICE UPON PRIVATE FOREIGN CORPORATION DOING
BUSINESS IN THE PHILIPPINES; RULE; CASE AT BAR. — Alternatively, in the light of the absence
of proof regarding Japanese law, the presumption of identity or similarity or the so-called processual
presumption may be invoked. Applying it, the Japanese law on the matter is presumed to be similar with
the Philippine law on service of summons on a private foreign corporation doing business in the
Philippines. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation
doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance
with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by
law to that effect, or (3) on any of its officers or agents within the Philippines. If the foreign corporation has
designated an agent to receive summons, the designation is exclusive, and service of summons is without
force and gives the court no jurisdiction unless made upon him. Where the corporation has no such agent,
service shall be made on the government official designated by law, to wit: (a) the Insurance
Commissioner, in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of
a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other
foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so
made, the government office or official served shall transmit by mail a copy of the summons or other legal
process to the corporation at its home or principal office. The sending of such copy is a necessary part of
the service. SHARP contends that the laws authorizing service of process upon the Securities and Exchange
Commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be,
presuppose a situation wherein the foreign corporation doing business in the country no longer has any
branches or offices within the Philippines. Such contention is belied by the pertinent provisions of the said
laws. Thus, Section 128 of the Corporation Code and Section 190 of the Insurance Code clearly
contemplate two situations: (1) if the corporation had left the Philippines or had ceased to transact business
therein, and (2) if the corporation has no designated agent. Section 17 of the General Banking Act does not
even speak of a corporation which had ceased to transact business in the Philippines. Nowhere in its
pleadings did SHARP profess to having had a resident agent authorized to receive court processes in Japan.
This silence could only mean, or at least create an impression, that it had none. Hence, service on the
designated government official or on any of SHARP's officers or agents in Japan could be availed of. The
respondent, however, insists that only service on any of its officers or employees in its branches in Japan

179
could be resorted to. We do not agree. As found by the respondent court, two attempts at service were made
at SHARP's Yokohama branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was
believed to be the person authorized to accept court process, was in Manila. On the second, Mr. Dinozo
was present, but he refused to accept the summons because, according to him, he was no longer an
employee of SHARP. While it may be true that service could have been made upon any of the officers or
agents of SHARP at its three other branches in Japan, the availability of such a recourse would not preclude
service upon the proper government official, as stated above. As found by the Court of Appeals, it was the
Tokyo District Court which ordered that summons for SHARP be served at its head office in the
Philippines after the two attempts of service had failed. The Tokyo District Court requested the Supreme
Court of Japan to cause the delivery of the summons and other legal documents to the Philippines. Acting
on that request, the Supreme Court of Japan sent the summons together with the other legal documents to
the Ministry of Foreign Affairs of Japan which, in turn, forwarded the same to the Japanese Embassy in
Manila. Thereafter, the court processes were delivered to the Ministry (now Department) of Foreign Affairs
of the Philippines, then to the Executive Judge of the Court of First Instance (now Regional Trial Court) of
Manila, who forthwith ordered Deputy Sheriff Rolando Balingit to serve the same on SHARP at its
principal office in Manila. This service is equivalent to service on the proper government official under
Section 14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code. Hence,
SHARP's contention that such manner of service is not valid under Philippine laws holds no water.
4. ID.; ID.; ID.; SUBSTITUTED SERVICE; RULE; RATIONALE. — The United States Supreme
Court ruled in the 1940 case of Milliken vs. Meyer (311 U.S. 457) that domicile in the state is alone
sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal
judgment by means of appropriate substituted service or personal service without the state. This principle is
embodied in Section 18, Rule 14 of the Rules of Court which allows service of summons on residents
temporarily out of the Philippines to be made out of the country. The rationale for this rule was explained
in Milliken as follows: [T]he authority of a state over one of its citizen is not terminated by the mere fact of
his absence from the state. The state which accords him privileges and affords protection to him and his
property by virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of
residence within the state, and the attendant right to invoke the protection of its laws, are inseparable" from
the various incidences of state citizenship. The responsibilities of that citizenship arise out of the
relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the
state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on
continuous presence in the state. One such incident of domicile is amenability to suit within the state even
during sojourns without the state, where the state has provided and employed a reasonable method for
apprising such an absent party of the proceedings against him.
5. COMMERCIAL LAW; CORPORATION; DOMICILE OF CORPORATION FORMED IN ONE
STATE BUT HAS OFFICES AND TRANSACTING BUSINESS IN OTHER STATE; RULE. — The
domicile of a corporation belongs to the state where it was incorporated. In a strict technical sense, such
domicile as a corporation may have is single in its essence and a corporation can have only one domicile
which is the state of its creation. Nonetheless, a corporation formed in one state may, for certain purposes,
be regarded a resident in another state in which it has offices and transacts business. This is the rule in our
jurisdiction and apropos thereof, it may be necessary to quote what we stated in State Investment House,
Inc. vs. Citibank, N.A., (203 SCRA 9, 18-20 [1991] ) to wit: . . . This Court itself has already had occasion
to hold [Claude Neon Lights, Fed. Inc. vs. Philippine Advertising Corp., 57 Phil. 607] that a foreign
corporation licitly doing business in the Philippines, which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision authorizing attachment against a
defendant not residing in the Philippine Islands; [Sec. 424, in relation to Sec. 412 of Act No. 190, the Code
of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940; Sec. 1 (f), Rule 57, Rules of 1964] in other
words, a preliminary attachment may not be applied for and granted solely on the asserted fact that the
defendant is a foreign corporation authorized to do business in the Philippines — and is consequently and
necessarily, "a party who resides out of the Philippines." Parenthetically, if it may not be considered as a
party not residing in the Philippines, or as a party who resides out of the country, then, logically, it must be
considered a party who does reside in the Philippines, who is a resident of the country. Be this as it may,
this Court pointed out that: ". . . Our laws and jurisprudence indicate a purpose to assimilate foreign
corporations, duly licensed to do business here, to the status of domestic corporations. (Cf. Section 73, Act
No. 1459, and Marshall Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad,

180
47 Phil. 385, 411) We think it would be entirely out of line with this policy should we make a
discrimination against a foreign corporation, like the petitioner, and subject its property to the harsh writ of
seizure by attachment when it has complied not only with every requirement of law made specially of
foreign corporations, but in addition with every requirement of law made of domestic corporations. . . ."
Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the
status of domestic corporations," subsumes their being found and operating as corporations, hence,
residing, in the country. The same principle is recognized in American law: that the "residence of a
corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions . . .;"
that it is considered as dwelling "in the place where its business is done, . . .," as being "located where its
franchises are exercised . . .," and as being "present where it is engaged in the prosecution of the corporate
enterprise;" that at "foreign corporation licensed to do business in a state is a resident of any country where
it maintains an office or agent for transaction of its usual and customary business for venue purposes;" and
that the "necessary element in its signification is locality of existence." [Words and Phrases, Permanent Ed.,
vol. 37, pp. 394, 412, 403]. Inasmuch as SHARP was admittedly doing business in Japan through its four
duly registered branches at the time the collection suit against it was filed, then in the light of the
processual presumption, SHARP may be deemed a resident of Japan, and, as such, was amenable to the
jurisdiction of the courts therein and may be deemed to have assented to the said courts' lawful methods of
serving process. Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid
not only under the processual presumption but also because of the presumption of regularity of
performance of official duty.
DECISION
DAVIDE, J p:
This petition on certiorari seeks to set aside the decision of the court of Appeals affirming the dismissal of
the petitioner's complaint to enforce the judgment of a Japanese court. The principal issue here is whether a
Japanese court can acquire jurisdiction over a Philippine corporation doing business in Japan by serving
summons through diplomatic channels on the Philippine corporation at its principal office in Manila after
prior attempts to serve summons in Japan had failed. Cdpr
Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST ), a corporation organized under the
laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637 of the Regional Trial
Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a Japanese court against private
respondent C.F. Sharp & Company, Inc., (hereinafter SHARP), a corporation incorporated under Philippine
laws. LLpr
As found by the Court of Appeals in the challenged decision of 10 November 1993, 1 the following are the
factual and procedural antecedents of this controversy:
On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company, through its Japan
branch, entered into an International Passenger Sales Agency Agreement, whereby the former authorized
the latter to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales made by
defendant on behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued defendant in
Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for damages.
On April 11, 1980, a writ of summons was issued by the 36th Civil Department, Tokyo District Court of
Japan against defendant at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku,
Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the bailiff
was advised by a person in the office that Mr. Dinozo, the person believed to be authorized to receive court
processes was in Manila and would be back on April 24, 1980.
On April 24, 1980, bailiff returned to the defendant's office to serve the summons. Dr. Dinozo refused to
accept the same claiming that he was no longer an employee of the defendant.
After the two attempts of service were unsuccessful, the judge of the Tokyo District Court decided to have
the complaint and the writs of summons served at the head office of the defendant in Manila. On July 11,
1980, the Director of the Tokyo District Court requested the Supreme Court of Japan to serve the summons
through diplomatic channels upon the defendant's head office in Manila.
On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the writ of summons (p.
276, Records). Despite receipt of the same, defendant failed to appear at the scheduled hearing. Thus, the
Tokyo Court proceeded to hear the plaintiff's complaint and on [January 29, 1981], rendered judgment
ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay at the rate of
6% per annum from August 28, 1980 up to and until payment is completed (pp. 12-14, Records).

181
On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the judgment. Defendant not
having appealed the judgment, the same became final and executory.
Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit for enforcement of the
judgment was filed by plaintiff before the Regional Trial Court of Manila, Branch 54. 2
On July 16, 1983, defendant filed its answer averring that the judgment of the Japanese Court sought to be
enforced is null and void and unenforceable in this jurisdiction having been rendered without due and
proper notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law and fact
(pp. 41-45, Rec.). LibLex
Unable to settle the case amicably, the case was tried on the merits. After the plaintiff rested its case,
defendant on April 21, 1989, filed a Motion for Judgment on a Demurrer to Evidence based on two
grounds: (1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the
said judgment is contrary to Philippine law and public policy and rendered without due process of law.
Plaintiff filed its opposition after which the court a quo rendered the now assailed decision dated June 21,
1989 granting the demurrer motion and dismissing the complaint (Decision, pp. 376-378, Records). In
granting the demurrer motion, the trial court held that:
"The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction
over the person of the defendant considering that this is an action in personam; the Japanese Court did not
acquire jurisdiction over the person of the defendant because jurisprudence requires that the defendant be
served with summons in Japan in order for the Japanese Court to acquire jurisdiction over it, the process of
the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot confer jurisdiction
over the defendant in the case before the Japanese court of the case at bar. Boudard versus Tait 67 Phil.
170. The plaintiff contends that the Japanese Court acquired jurisdiction because the defendant is a resident
of Japan, having four (4) branches doing business therein and in fact had a permit from the Japanese
government to conduct business in Japan (citing the exhibits presented by the plaintiff); if this is so then
service of summons should have been made upon the defendant in Japan in any of these alleged four
branches; as admitted by the plaintiff the service of the summons issued by the Japanese Court was made in
the Philippines thru a Philippine sheriff. This Court agrees that if the defendant in a foreign court is a
resident in the court of that foreign court such court could acquire jurisdiction over the person of the
defendant but it must be served upon the defendant in the territorial jurisdiction of the foreign court. Such is
not the case here because the defendant was served with summons in the Philippines and not in Japan."
Unable to accept the said decision, plaintiff on July 11, 1989 moved for reconsideration of the decision,
filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal "as
in effect after and upon issuance of the court's denial of the motion for reconsideration."cdasia
Defendant opposed the motion for reconsideration to which a Reply dated August 28, 1989 was filed by the
plaintiff.
On October 16, 1989, the lower court disregarded the Motion for Reconsideration and gave due course to
the plaintiff's Notice of Appeal. 3
In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its reliance upon
Boudard vs. Tait 4 wherein it was held that "the process of the court has no extraterritorial effect and no
jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state."
To support its position, the Court of Appeals further stated:
In an action strictly in personam, such as the instant case, personal service of summons within the forum is
required for the court to acquire jurisdiction over the defendant (Magdalena Estate Inc. vs. Nieto, 125
SCRA 230). To confer jurisdiction on the court, personal or substituted service of summons on the
defendant not extraterritorial service is necessary (Dial Corp. vs. Soriano, 161 SCRA 739). LLjur
But while plaintiff-appellant concedes that the collection suit filed is an action in personam, it is its theory
that a distinction must be made between an action in personam against a resident defendant and an action in
personam against a non-resident defendant. Jurisdiction is acquired over a non-resident defendant only if he
is served personally within the jurisdiction of the court, and over a resident defendant if by personal,
substituted or constructive service conformably to statutory authorization. Plaintiff-appellant argues that
since the defendant-appellee maintains branches in Japan, it is considered a resident defendant. Corollarily,
personal substituted or constructive service of summons when made in compliance with the procedural
rules is sufficient to give the court jurisdiction to render judgment in personam.
Such an argument does not persuade.

182
It is general rule that processes of the court cannot lawfully be served outside the territorial limits of the
jurisdiction of the court from which it issues (Carter vs. Carter, 41 S.E. 2d 532, 201) and this is regardless
of the residence or citizenship of the party thus served (Iowa-Rahr, 129 NW 494, 150 Iowa 511, 35 LRC,
NS 292, Am. Case 1912 D680). There must be actual service within the proper territorial limits on
defendant or someone authorized to accept service for him. Thus, a defendant, whether a resident or not in
the forum where the action is filed, must be served with summons within that forum. cdasia
But even assuming a distinction between a resident defendant and non-resident defendant were to be
adopted, such distinction applies only to natural persons and not to corporations. This finds support in the
concept that "a corporation has no home or residence in the sense in which those terms are applied to
natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited by the
defendant-appellee in its brief:
"Residence is said to be an attribute of a natural person, and can be predicated on an artificial being only by
more or less imperfect analogy. Strictly speaking, therefore, a corporation can have no local residence or
habitation. It has been said that a corporation is a mere ideal existence, subsisting only in contemplation of
law — an invisible being which can have, in fact, no locality and can occupy no space, and therefore
cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle vs. Topeka, 88 370, 128 p. 367;
wood v. Hartfold F. Ins. Co., 13 Conn 202)"
Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by the
place of its origin, where its charter was granted and not by the location of its business activities (Jennings
v. Idaho Rail Light & P. Co., 26 Idaho 703, 146 p. 101). A corporation is a "resident" and an inhabitant of
the state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49).
Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its
residence is the Philippines, the place of its incorporation, and not Japan. While defendant-appellee
maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a
resident of another by engaging in business there even though licensed by that state and in terms given all
the rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs. Gonzales, 151 US 496,
38 L ed. 248, 4 S Ct. 401).cdasia
On this premise, defendant appellee is a non-resident corporation. As such, court processes must be served
upon it at a place within the state in which the action is brought and not elsewhere (St. Clair vs. Cox, 106
US 350, 27 L ed. 222, 1 S. Ct. 354). 5

It then concluded that the service of summons effected in Manila or beyond the territorial boundaries of
Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP;
hence, its decision was void.
Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this Court
contending that the respondent court erred in holding that SHARP was not a resident of Japan and that
summons on SHARP could only be validly served within the country.
A foreign judgment is presumed to be valid and binding in the country from which it comes, until the
contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due
notice therein. 6
Under Section 50, Rule 39 of the rules of court, a judgment in an action in personam of a tribunal of a
foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between
the parties and their successors-in-interest by a subsequent title. The judgment may, however, be assailed
by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoys the
presumption that it was acting in the lawful exercise of jurisdiction and has regularly performed its official
duty. cdasia
Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its
validity. 7 Being the party challenging the judgment rendered by the Japanese court, SHARP had the duty
to demonstrate the invalidity of such judgment. In an attempt to discharge that burden, it contends that the
extraterritorial service of summons effected but also was void, and the Japanese Court did not, therefore,
acquire jurisdiction over it.
It is settled that matters of remedy and procedure such as those relating to the service of process upon a
defendant are governed by the lex fori or the internal law of the forum. 8 In this case, it is the procedural
law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of

183
process on SHARP. As to what this law is a question of fact, not of law. It may not be taken judicial notice
of and must be pleaded and proved like any other fact. 9 Sections 24 and 25, rule 132 of the Rules of Court
provide that it may be evidenced by an official publication or by a duly attested or authenticated copy
thereof. It was then incumbent upon SHARP to present evidence as to what that Japanese procedural law is
and to show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the
presumption of validity and regularity of the service of summons and the decision thereafter rendered by
the Japanese court must stand.
Alternatively, in the light of the absence of proof regarding Japanese law, the presumption of identity or
similarity or the so-called processual presumption 10 may be invoked. applying it, the Japanese law on the
matter is presumed to be similar with the Philippine law on service of summons on a private foreign
corporation doing business in the Philippines. Section 14, Rule 14 of the rules of Court provides that if the
defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its
resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent,
on the government official designated by law to that effect, or (3) on any of its officers or agents within the
Philippines. cdasia
If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and
service of summons is without force and gives the court no jurisdiction unless made upon him. 11
Where the corporation has no such agent, service shall be made on the government official designated by
law, to wit: (a) the Insurance Commissioner, in the case of a foreign insurance company; (b) the
Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange
Commission, in the case of other foreign corporations duly licensed to do business in the Philippines.
whenever service of process is so made, the government office or official served shall transmit by mail a
copy of the summons or other legal process to the corporation at its home or principal office. The sending
of such copy is a necessary part of the service. 12
SHARP contends that the laws authorizing service of process upon the Securities and Exchange
commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be,
presuppose a situation wherein the foreign corporation doing business in the country no longer has any
branches or offices within the Philippines. Such contention is belied by the pertinent provisions of the said
laws. Thus, Section 128 of the Corporation Code 13 and Section 190 of the Insurance Code 14 clearly
contemplate two situations: (1) if the corporation had left the Philippines or had ceased to transact business
therein, and (2) if the corporation has no designated agent. Section 17 of the General Banking Act 15 does
not speak of a corporation which had ceased to transact business in the Philippines.
Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court
processes in Japan. This silence could only mean, or at least create an impression, that it had none. Hence,
service on the designated government official or on any of SHARP's officers or agents in Japan could be
availed of. The respondent, however, insists that only service on any of its officers or employees in its
branches in Japan could be resorted to. We do not agree. As found by the respondent court, two attempts at
service were made at SHARP's Yokohoma branch. Both were unsuccessful. On the first attempt, Mr.
Dinozo, who was believed to be the person authorized to accept court process, was in Manila. On the
second, Mr. Dinozo was present, but he refused to accept the summons because, according to him, he was
no longer an employee of SHARP. While it may be true that service could have been made upon any of the
officers or agents of SHARP at its three other branches in Japan, the availability of such a recourse would
not preclude service upon the proper government official, as stated above. cdasia
As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons for
SHARP be served at its head office in the Philippines after the two attempts of service had failed. 16 The
Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and other
legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the summons
together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in turn
forwarded the same to the Japanese Embassy in Manila. Thereafter, the court processes were delivered to
the Ministry (now Department) of Foreign Affairs of the Philippines, then to the executive Judge of the
Court of First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff
Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is equivalent to
service on the proper government official under Section 14, Rule 14 of the Rules of Court, in relation to
Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of service is not valid
under Philippine laws holds no water. 17

184
In deciding against the petitioner, the respondent court sustained the trial court's reliance on Boudard vs.
Tait 18 where this Court held:
"The fundamental rule is that jurisdiction in personam over non-residents, so as to sustain a money
judgment, must be based upon personal service within the state which renders the judgment."
xxx xxx xxx
"The process of a court has no extraterritorial effect, and no jurisdiction is acquired over the person of the
defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a foreign
country against a resident of this country having no property in such foreign country based on process
served here, any effect here against either the defendant personally or his property situated here."
"Process issuing from the courts of one state or country cannot run into another, and although a non-
resident defendant may have been personally served with such process in the state or country of his
domicile, it will not give such jurisdiction as to authorize a personal judgment against him."cdasia
It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto 19 and Dial Corp. vs. Soriano, 20 as well
as the principle laid down by the Iowa Supreme Court in the 1911 case of Raher vs. Raher. 21
The first three cases are, however, inapplicable. Boudard involved the enforcement of a judgment of the
civil division of the Court of First Instance of Hanoi, French Indo-China. The trial court dismissed the case
because the Hanoi court never acquired jurisdiction over the person of the defendant considering that "[t]he
evidence adduced at the trial conclusively proves that neither the appellee [the defendant] nor his agent or
employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore Jerome Boudard
had never, at any time, been his employee." In Magdalena Estate, what was declared invalid resulting in the
failure of the court to acquire jurisdiction over the person of the defendants in an action in personam was
the service of summons through publication against non-appearing resident defendants. It was claimed that
the latter concealed themselves to avoid personal service of summons upon them. In Dial, the defendants
were foreign corporations which were not domiciled and licensed to engage in business in the Philippines
and which did not have officers or agents, places of business, or properties here. On the other hand, in the
instant case, SHARP was doing business in Japan and was maintaining four branches therein.
Insofar as the Philippines is concerned, Raher is a thing of the past. In that case, a divided Supreme Court
of Iowa declared that the principle that there can be no jurisdiction in a court of a territory to render a
personal judgment against anyone upon service made outside its limits was applicable alike to cases of
residents and non-residents. The principle was put at rest by the United States Supreme Court when it ruled
in the 1940 case of Milliken vs. Meyer 22 that domicile in the state is alone sufficient to bring an absent
defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of
appropriate substituted service or personal service without the state. This principle is embodied in Section
18, Rule 14 of the Rules of Court which allows service of summons on residents temporarily out of the
Philippines to be made out of the country. The rationale for this rule was explained in Milliken as
follows:cdasia
[T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the
state. The state which accords him privileges and affords protection to him and his property by virtue of his
domicile may also exact reciprocal duties. "Enjoyment of the privileges of residence within the state, and
the attendant right to invoke the protection of its laws, are inseparable" from the various incidences of state
citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile
creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the
rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such
incident of domicile is amenability to suit within the state even during sojourns without the state, where the
state has provided and employed a reasonable method for apprising such an absent party of the proceedings
against him. 23
The domicile of a corporation belongs to the state where it was incorporated. 24 In a strict technical sense,
such domicile as a corporation may have is single in its essence and a corporation can have only one
domicile which is the state of its creation. 25
Nonetheless, a corporation formed in one state may, for certain purposes, be regarded a resident in another
state in which it has offices and transacts business. This is the rule in our jurisdiction and apropos thereto, it
may be necessary to quote what we stated in State Investment House, Inc. vs. Citibank, N.A., 26 to wit:
The issue whether these Philippine branches or units may be considered "residents of the Philippine
Islands" as that term is used in Section 20 of the Insolvency Law . . . or residents of the state under the laws
of which they were respectively incorporated. The answer cannot be found in the Insolvency Law itself,

185
which contains no definition of the term, resident, or any clear indication of its meaning. There are however
other statutes, albeit of subsequent enactment and effectivity, from which enlightening notions of the term
may be derived. cdasia
The National Internal Revenue Code declares that the term "'resident foreign corporation' applies to a
foreign corporation engaged in trade or business within the Philippines," as distinguished from a "'non-
resident foreign corporation' . . . (which is one) not engaged in trade or business within the Philippines."
[Sec. 20, pars. (h) and (i)].
The Offshore Banking Law, Presidential Decree No. 1034, states "that branches, subsidiaries, affiliation,
extension offices or any other units of corporation or juridical person organized under the laws of any
foreign country operating in the Philippines shall be considered residents of the Philippines." [Sec. 1 (e)].
The General Banking Act, Republic Act No. 337, places "branches and agencies in the Philippines of
foreign banks . . . (which are) called Philippine branches, in the same category as "commercial banks,
savings associations, mortgage banks, development banks, rural banks, stock savings and loan associations"
(which have been formed and organized under Philippine laws), making no distinction between the former
and the latter in so far as the terms "banking institutions" and "bank" are used in the Act [Sec. 2], declaring
on the contrary that in "all matters not specifically covered by special provisions applicable only to foreign
banks, or their branches and agencies in the Philippines, said foreign banks or their branches and agencies
in the Philippines, said foreign banks or their branches and agencies lawfully doing business in the
Philippines "shall be bound by all laws, rules, and regulations applicable to domestic banking corporations
of the same class, except such laws, rules and regulations as provided for the creation, formation,
organization, or dissolution of corporations or as fix the relation, liabilities, responsibilities, or duties of
members, stockholders or offices of corporation." [Sec. 18].cdasia
This Court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs. Philippine
Advertising Corp., 57 Phil. 607] that a foreign corporation licitly doing business in the Philippines, which
is a defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Philippine Islands; [Sec. 424, in relation to
Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1 (f), Rule 59 of the Rules of 1940; Sec. 1(f),
Rule 57, rules of 1964] in other words, a preliminary attachment may not be applied for and granted solely
on the asserted fact that the defendant is a foreign corporation authorized to do business in the Philippines
— and is consequently and necessarily, "a party who resides out of the Philippines." Parenthetically, if it
may no be considered as a party who resides out of the country, then, logically, it must be considered a
party who does reside in the Philippines, who is a resident of the country. Be this as it may, this Court
pointed out that:
". . . Our laws and jurisprudence indicate a purpose to assimilate foreign corporations, duly licensed to do
business here, to the status of domestic corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells
Co. vs. henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it
would be entirely out of line with this policy should we make a discrimination against a foreign
corporation, like the petitioner, and subject its property to the harsh writ of seizure by attachment when it
has complied not only with every requirement of law made specially of foreign corporations, but in
addition with every requirement of law made of domestic corporations. . . ."
Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the
status of domestic corporations," subsumes their being found and operating as corporations, hence,
residing, in the country. cdasia
The same principle is recognized in American law: that the "residence of a corporation, if it can be said to
have a residence, is necessarily where it exercises corporate functions . . .;" that it is considered as dwelling
"in the place where its business is done . . ." as being "located where its franchises are exercised . . .," and
as being "present where it is engaged in the prosecution of the corporate enterprise;" that a "foreign
corporation licensed to do business in a state is a resident of any country where it maintains an office or
agent for transaction of its usual and customary business for venue purposes;" and that the "necessary
element in its signification is locality of existence." [Words and Phrases, Permanent Ed., vol. 37, pp. 394,
412, 403].
Inasmuch as SHARP was admittedly doing business in Japan through its four duly registered branches at
the time the collection suit against it was filed, then in the light of the processual presumption, SHARP may
be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein and may
be deemed to have assented to the said courts' lawful methods of serving process. 27

186
Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not only under
the processual presumption but also because of the presumption of regularity of performance of official
duty.
We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages to be
without merit. We find no evidence that would justify an award for attorney's fees and litigation expenses
under Article 2208 of the Civil Code of the Philippines. Nor is an award for exemplary damages warranted.
Under Article 2234 of the Civil Code, before the court may consider the question of whether or not
exemplary damages should be awarded, the plaintiff must show that he is entitled to moral, temperate, or
compensatory damages. There being no such proof presented by NORTHWEST, no exemplary damages
may be adjudged in its favor. cdasia
WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is AFFIRMED
insofar as it denied NORTHWEST's claims for attorney's fees, litigation expenses, and exemplary damages
but REVERSED insofar as it sustained the trial court's dismissal of NORTHWEST's complaint in Civil
Case No. 83-17637 of Branch 54 of the Regional Trial Court of Manila, and another in its stead is hereby
rendered ORDERING private respondent C.F. SHARP & COMPANY, INC. to pay to NORTHWEST the
amounts adjudged in the foreign judgment subject of said case, with interest thereon at the legal rate from
the filing of the complaint therein until the said foreign judgment is fully satisfied.
Costs against the private respondent.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ ., concur.

Section 34
XXXII People vs Pecardal

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONSTANTINO PECARDAL, accused-


appellant.
Renato U. Galimba for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL CONFESSION; DISREGARDED; NOT
FORMALLY OFFERED BY BOTH PROSECUTION AND DEFENSE; CASE AT BAR. — In the
decision convicting the accused-appellant, the trial judge relied strongly, if not almost mainly, on the
former's confession. This is strange because, to repeat, that piece of evidence was never formally offered by
the prosecution or, for that matter, even the defense. This document should never have been considered at
all because of Rule 132, Section 35, of the Rules of Court providing as follows: "Sec. 35. Offer of
evidence. — The court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified." According to Moran, "the offer is necessary because it is
the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered
by the parties at the trial." In his demurrer to the evidence, the accused-appellant stressed the failure of the
prosecution to present this confession, but the prosecutor simply said it was part of its strategy and left it at
that. Despite all this, the trial judge referred in his decision to Exhibit "H" as the confession and considered
it sufficient basis for the conviction of the accused. As a matter of fact, Exhibit "H" was not the confession
but the Police Referral of the case to the City Fiscal of Quezon City dated July 22, 1982.
2. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO COUNSEL DURING CUSTODIAL
INVESTIGATION; VIOLATED IN CASE AT BAR. — Even assuming that the supposed confession had
been formally offered in evidence, we would have to reject it just the same because it violates Section 20,
Article IV, of the 1973 Constitution. The undisputed evidence is that the confession was obtained without
according to the accused-appellant the right to counsel and after he had been subjected to physical
compulsion and maltreatment. If there was really an interrogation of the accused, the notification of his
constitutional rights by the investigating officer was perfunctory and pro forma, intended obviously merely
to satisfy the prescribed norms through a recitation by rote of the sacramental advise. Although he was
supposedly informed of his right to counsel, he was not told he could get one if he so desired or that one
could be provided him at his request. It is a matter of record that the interrogation was made in the absence
of counsel, de parte or de oficio, and that the waiver of counsel, if made at all, was not made with
assistance of counsel as required.

187
3. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL CONFESSION; LACKS
VOLUNTARINESS; CASE AT BAR. — Besides the lack of counsel, there was the violence the accused
claimed was inflicted upon him by the police. According to him, he was undressed, boxed, kicked, hit in
the back with the rattan chair, and electric shocked. Finally, unable to bear the punishment any longer, he
agreed to sign the prepared confession which he was not allowed to read. The prosecution did not introduce
any witness to refute these allegations. We note that at the time the accused-appellant was apprehended and
interrogated, he was only seventeen years old. That is a susceptible age. One can accept how easily a
teenager can succumb to the pressure exerted upon him by hardened investigators experienced in extracting
confessions through the use of methods less than legal. That pressure was in this case irresistible.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; PRESUMPTION OF INNOCENCE SHOULD
PREVAIL IN CASE OF DOUBT. — When the evidence for the prosecution and the evidence for the
accused are weighed, the scales must be tipped in favor of the latter. This is because of the constitutional
presumption of innocence the accused enjoys as a counterfoil to the awesome authority of the State that is
prosecuting him. The element of doubt, if reasonable as in this case, must operate against the inference of
guilt the prosecution would draw from its evidence. That evidence, as it happens, consist only of the
uncorroborated statement of the two policemen which, as previously observed, is flawed and therefore
suspect. The Solicitor General strongly argues that the supposed confession could not have been made by
any one except the perpetrator of the offense because its commission was described in minute detail.
Perhaps so. On the other hand, it could have been the work of a creative imagination that concocted all the
said details to make a plausible tale against the accused-appellant. The doubt, which we cannot brush aside,
is there.
DECISION
CRUZ, J p:
The accused-appellant stands convicted of the crime of robbery with homicide and has been sentenced to
life imprisonment. 1 He asks us to reverse the decision of the trial court because his constitutional rights
have been violated.
The victim of the offense was a taxi driver whose body was found in the luggage compartment of his
vehicle in the morning of May 27, 1982. He had been stabbed twenty three times with a balisong that had
later been left on the dashboard of the car. Apparently, Rogelio Florendo had also been robbed for no
money was found on his person or in the taxicab.
It was two months later when the accused-appellant was picked up by the police and questioned in
connection with the crime, As a result, an information for the said offense was filed against him and his
unidentified co-accused, who was then at large and so was not tried with him. 2
According to the prosecution, Pecardal and his companion boarded the victim's taxicab at about 1 o'clock in
the morning of May 27, 1982, and thereafter held him up. When he resisted, they stabbed him in different
parts of the body and killed him. They then divested him of his money in the amount of P200.00, placed his
body in the luggage compartment of the car, which they drove to and abandoned in Yakal Street, Project 3,
Amihan, Quezon City. There it was discovered with its grisly occupant that same morning by a barangay
tanod. 3
Presented as prosecution witnesses were the victim's wife, Concepcion Florendo, who testified on the civil
damages; 4 Dr. Gregorio Blanco, who performed the autopsy on the victim's body; 5 Pat. Teodoro Ybuan,
and one of the two policemen who "invited" the accused-appellant for investigation. 6
This last witness and Pat. Ernesto Daria declared in a joint affidavit that Pecardal "when questioned readily
admitted his participation in the fatal stabbing of victim ROGELIO FLORENDO after robbing him of his
daily earnings amounting to P200.00; and named EDUARDO AZARCON as his partner in the commission
of the said offense." 7
They said they thereafter turned over the accused-appellant to the Quezon City Police Headquarters, where
he signed a statement confessing his guilt. The statement described in detail how the offense was
committed and was marked as Exhibit "H" at the trial. 8 Significantly, however, it was never specifically
offered in evidence by the prosecution.
The prosecution made much of this confession and argued it could not have been made except by the actual
perpetrator of the crime because of its detailed narration. Moreover, it had been given by the accused-
appellant voluntarily, after he had been apprised of his constitutional rights. 9

188
The accused-appellant took the stand in his defense mainly to denounce this confession He testified on the
physical punishment inflicted on him by the police investigators that ultimately forced him to sign the
statement which he said had been prepared unilaterally by them. 10 This testimony was not rebutted.
In the decision convicting the accused-appellant, 11 the trial judge relied strongly, if not almost mainly, on
this confession. This is strange because, to repeat, that piece of evidence was never formally offered by the
prosecution or, for that matter, even the defense.
This document should never have been considered at all because of Rule 132, Section 35, of the Rules of
Court providing as follows:
"Sec. 35. Offer of evidence. — The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified."
According to Moran, "the offer is necessary because it is the duty of a judge to rest his findings of facts and
his judgment only and strictly upon the evidence offered by the parties at the trial." 12
In his demurrer to the evidence, the accused-appellant stressed the failure of the prosecution to present this
confession, 13 but the prosecutor simply said it was part of its strategy and left it at that. 14
Despite all this, the trial judge referred in his decision to Exhibit "H" as the confession and considered it
sufficient basis for the conviction of the accused. As a matter of fact, Exhibit "H" was not the confession
but the Police Referral of the case to the City Fiscal of Quezon City dated July 22, 1982. 15
But even assuming that the supposed confession had been formally offered in evidence, we would have to
reject it just the same because it violates Section 20, Article IV, of the 1973 Constitution.
The undisputed evidence is that the confession was obtained without according to the accused-appellant the
right to counsel and after he had been subjected to physical compulsion and maltreatment. prLL
If there was really an interrogation of the accused, the notification of his constitutional rights by the
investigating officer was perfunctory and pro forma, intended obviously merely to satisfy the prescribed
norms through a recitation by rote of the sacramental advise. 16
Although he was supposedly informed of his right to counsel, he was not told he could get one if he so
desired or that one could be provided him at his request. It is a matter of record that the interrogation was
made in the absence of counsel, de parte or de oficio, and that the waiver of counsel, if made at all, was not
made with the assistance of counsel as required. 17
It is true that the original requirement laid down in Morales v. Enrile 18 was not supported by the majority
of eight required by the Constitution. Nonetheless, the doctrine announced therein was later affirmed in
People v. Galit, 19 with fourteen members of the Court voting in favor and only one not taking part. The
same rule was only recently reiterated in the case of People v. Sison, 20 decided last May.
Besides the lack of counsel, there was the violence the accused claimed was inflicted upon him by the
police. According to him, he was undressed, boxed, kicked, hit in the back with a rattan chair, and electric-
shocked. 21 Finally, unable to bear the punishment any longer, he agreed to sign the prepared confession
which he was not allowed to read. 22 The prosecution did not introduce any witness to refute these
allegations.
Surely, a confession obtained under these circumstances cannot stand if we are to obey the mandate of the
Constitution, as we must.
It is argued, however, that the accused-appellant orally admitted to Pat. Ybuan and Pat Daria that he had
killed and robbed Florendo. This admission was made, according to the two policemen in their joint
affidavit, after they apprehended the accused-appellant and started questioning him.
While Pat. Ybuan testified that he informed the suspect of his constitutional rights at the time of his arrest,
there is no record that the admission was made by him in the presence of counsel, or that he had previously
waived counsel.
Additionally, even assuming that the accused-appellant was not yet under custodial investigation at the time
and that the requirements of Section 20 were not yet applicable, there is still the question of the credibility
of these two policemen.
One may suppose that in an excess of zeal the peace officers might have colored their statement to insure
the accused-appellant's conviction. In any event, it is their word against that of the accused-appellant, who
disavowed the admission. 23
When the evidence for the prosecution and the evidence for the accused are weighed, the scales must be
tipped in favor of the latter. This is because of the constitutional presumption of innocence the accused
enjoys as a counterfoil to the awesome authority of the State that is prosecuting him. 24

189
The element of doubt, if reasonable as in this case, must operate against the inference of guilt the
prosecution would draw from its evidence. That evidence, as it happens, consists only of the
uncorroborated statement of the two policemen which, as previously observed, is flawed and therefore
suspect.
The confession which could have corroborated them was not formally offered by the prosecution. In any
case, it is void because it was obtained without the advice or even the presence of counsel, besides having
been vitiated by force and threats. LLpr
The Solicitor General strongly argues that the supposed confession could not have been made by any one
except the perpetrator of the offense because its commission was described in minute detail. Perhaps so. On
the other hand, it could have been the work of a creative imagination that concocted all the said details to
make a plausible tale against the accused-appellant. The doubt, which we cannot brush aside, is there.
We note that at the time the accused-appellant was apprehended and interrogated, he was only seventeen
years old. That is a susceptible age. One can accept how easily a teenager can succumb to the pressure
exerted upon him by hardened investigators experienced in extracting confessions through the use of
methods less than legal. That pressure was in this case irresistible.
A life has been taken and justice demands that the wrong be redressed. But the same justice that calls for
retribution cannot convict the prisoner at bar whose guilt has not been proved. Justitia est duplex, viz.,
severe puniens et vere praeveniens. Even as this Court must punish, so too must it protect. Conceivably, the
conviction of the accused-appellant could add another victim in this case.
WHEREFORE, the appealed decision is REVERSED and the accused-appellant ACQUITTED, with costs
de oficio. It is so ordered.
Yap, Narvasa, Melencio-Herrera and Feliciano, JJ ., concur.

XXIII PBCOM VS CA

PHILIPPINE BANK OF COMMUNICATIONS, petitioner, vs. COURT OF APPEALS, JOSEPH L.G.


CHUA and JALECO DEVELOPMENT, INC., respondents.
Sepidoza and Laogan Law Offices for petitioner. Sotto & Sotto Law Offices for respondent Joseph L.G.
Chua.
Elias L. De los Reyes for Jaleco Development Inc.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ADMISSIONS; DOCUMENTS ATTACHED TO THE
COMPLAINT MAY BE CONSIDERED EVIDENCE ALTHOUGH NOT INTRODUCED AS SUCH. —
Chua's admission of the existence of the Deed of Exchange, attached to the "Petition as Annex "F" falls
squarely within the scope of Judicial Admissions under Section 4, Rule 129 of the Rules of Court. As early
as 1925 in the case of Asia Banking Corporation v. Walter E. Olsen & Co. (48 Phil. 529), we have ruled
that documents attached to the complaint are considered a part thereof and may be considered as evidence
although they were not introduced as such.
2. ID.; ID.; ID.; ID.; CASE AT BAR. — The Deed of Exchange was attached to the petition.
Necessarily, JALECO's contention that it has no knowledge or information sufficient to form a belief as to
the truth of the deed of exchange becomes an invalid or ineffective denial pursuant to the Rules of Court.
Under the circumstances, the petitioner could have easily asserted whether or not it executed the deed of
exchange. The ruling in Capitol Motors Corporations v. Yabut (32 SCRA 1 [1970])
3. ID.; ACTIONS; PETITION FOR ANNULMENT OF DEED OF EXCHANGE; AVAILED OF
WHERE PROPERTY SOUGHT TO SATISFY THE DEBTS WAS DISPOSED OF IN FRAUD OF
CREDITORS. — We find as not well-taken the appellate court's ruling that the pendency of two (2) other
cases for collection of money against respondent Chua, among others as surety of Fortune Motors (Phils.),
Inc. and Forte Merchant Finance, Inc., renders the petition for annulment of deed of exchange premature.
For failure of both Fortune Motors (Phils), Inc. and Forte Merchant Finance, Inc. to pay their obligations
with the petitioner, the latter filed the two civil cases against Fortune Motors (Phils.), Inc. and Forte
Merchant Finance, Inc. and respondent Chua, among others with the Regional Trial Court of Manila. The
petitioner was granted a writ of attachment as a result of which properties belonging to Fortune Motors
(Phils.) were attached. It turned out, however, that the attached properties of Fortune Motors (Phils.), Inc.
were already previously attached/mortgaged to prior lien holders in the amount of about P70,000,000.00.
As regards Forte Merchant Finance, Inc., it appears that it has no property to satisfy the debts it incurred

190
with PBCOM. The record further shows that as regards Chua, the property subject of the Deed of Exchange
between him and JALECO was his only property. Under these circumstances, the petitioner's petition for
annulment of the deed of exchange on the ground that the deed was executed in fraud of creditors, despite
the pendency of the two (2) other civil cases is well-taken.
4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; SURETYSHIP; REMEDIES AVAILABLE
TO CREDITOR WHERE DEBTOR FAILS TO FULFILL OBLIGATION. — As surety for the financial
obligations of Fortune Motors (Phils.), Inc. and the Forte Merchant Finance, Inc., with the petitioner,
respondent Chua bound himself solidarily liable with the two (2) principal debtors. (Article 2047, Civil
Code) The petitioner may therefore demand payment of the whole financial obligations of Fortune Motors
(Phils.), Inc. and Forte Finance, Inc., from Chua, if the petitioner chooses to go directly after him. Hence,
since the only property of Chua was sold to JALECO after the debts became due, the petitioner has the
right to file an annulment of the deed of exchange between Chua and JALECO wherein Chua sold his only
property to JALECO to protect his interests and so as not to make the judgments in the two (2) cases
illusory.
5. REMEDIAL LAW; EVIDENCE; DEPUTY CLERK OF COURT ALLOWED TO RECEIVE
EVIDENCE IN AN EX-PARTE PROCEEDINGS. — The trial court disregarded the ex-parte evidence
adduced by the petitioner against JALECO when the latter was declared in default on the ground that the
ex-parte proceedings were conducted by the Deputy Clerk of Court which is not allowed in accordance
with the ruling in the case of Lim Tanhu v. Ramolete (66 SCRA 425 [1975]). That ruling has already been
overruled in the later case of Gochangco v. CFI of Negros Occidental (157 SCRA 40 [1988]), wherein we
said: " . . . there are several explicitly authorized instances under the Rules where the function of receiving
evidence and even of making recommendatory findings of facts on the basis thereof may be delegated to
commissioners, inclusive of the Clerk of Court. These instances are set out in Rule 33, Rules 67 and 69,
Rule 136. In all these instances, the competence of the clerk of court is assumed. Indeed, there would seem,
to be sure, nothing intrinsically wrong in allowing presentation of evidence ex parte before a Clerk of
Court. Such a procedure certainly does not foreclose relief to the party adversely affected who, for valid
cause and upon appropriate and seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the Court itself which is duty bound and
has the ultimate responsibility to pass upon the evidence received in this manner, discarding in the process
such proofs as are incompetent and then declare what facts have thereby been established. In considering
and analyzing the evidence preparatory to rendition of judgment on the merits, it may not unreasonably be
assumed that any serious error in the ex parte presentation of evidence, prejudicial to any absent party, will
be detected and duly remedied by the Court, and/or may always, in any event be drawn to its attention by
any interested party . . ."
6. MERCANTILE LAW; CORPORATION; WITH SEPARATE AND DISTINCT PERSONALITY
FROM ITS STOCKHOLDERS. — A corporation "is invested by la