Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191532 August 15, 2012

MARGARITA AMBRE Y CAYUNI, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES Respondent.

PEREZ,*

REYES,**

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the November 26, 2009
Decision 1 and the March 9, 2010 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 31957,
which affirmed the September 1, 2008 Decision3 of the Regional Trial Court, Branch 123, Caloocan
City, (RTC) in Criminal Case No .. C-73029, finding petitioner Margarita Ambre y
Cayuni (Ambre) guilty beyond reasonable doubt of the crime of violation of Section 15, Article II of
Republic Act (R.A.) No. 9165.

THE FACTS

Two separate Informations were filed against Ambre, and co-accused, Bernie Castro (Castro) and
Kaycee Mendoza (Mendoza), before the RTC charging them with illegal possession of drug
paraphernalia docketed as Criminal Case No. C-73028, and illegal use of methylamphetamine
hydrochloride, otherwise known as shabu, docketed as Criminal Case No. C-73029. The
Informations indicting the accused read:

Criminal Case No. C-73028

That on or about 20th day of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without being authorized by law, did then and
there willfully, unlawfully and feloniously have in his possession, custody and control one (1)
unsealed transparent plastic sachet containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum foil strip containing traces
of white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded
aluminum foil strip containing traces of white crystalline substance, (METHYLAMPHETAMINE
HYDROCHLORIDE) and two (2) disposable plastic lighters, knowing the same are paraphernalias
instruments apparatus fit or intended for smoking, consuming, administering, ingesting or introducing
dangerous drug (METHYLAMPHETAMINE HYDROCHLORIDE) into the body.

Contrary to law.4

Criminal Case No. C-73029

That on or about the 20th of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and mutually helping with one
another, without being authorized by law, did then and there willfully, unlawfully and feloniously use
and sniff Methylamphetamine Hydrochloride (Shabu), knowing the same to be a dangerous drug
under the provisions of the above-cited law.

Contrary to law.5

When arraigned, Castro and Mendoza pleaded guilty to both charges. Consequently, they were
meted the penalty of imprisonment of six (6) months and one (1) day to one (1) year and eight (8)
months and a fine of ₱25,000.00 in Criminal Case No. C-73028. For their conviction in Criminal
Case No. C-73029, the RTC ordered their confinement at the Center for the Ultimate Rehabilitation
of Drug Dependents (CUREDD) for a period of six (6) months.6

Ambre, on the other hand, entered a plea of not guilty to the charges.7 Trial on the merits ensued.

The Version of the Prosecution

From the testimonies of prosecution witnesses PO3 Fernando Moran (PO3 Moran), PO1 Ronald
Allan Mateo (PO1 Mateo), PO2 Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa
(P/Insp. dela Rosa), it appeared that on April 20, 2005, the Caloocan Police Station Anti-Illegal Drug-
Special Operation Unit conducted a buy-bust operation pursuant to a tip from a police informant that
a certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were engaged in the selling of
dangerous drugs at a residential compound in Caloocan City; that the buy-bust operation resulted in
the arrest of Aderp and a certain Moctar Tagoranao (Tagoranao); that Sultan ran away from the
scene of the entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him; that in
the course of the chase, Sultan led the said police officers to his house; that inside the house, the
police operatives found Ambre, Castro and Mendoza having a pot session; that Ambre, in particular,
was caught sniffing what was suspected to be shabu in a rolled up aluminum foil; and that PO3
Moran ran after Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro and Mendoza for
illegal use of shabu.

The items confiscated from the three were marked and, thereafter, submitted for laboratory
examination. Physical Science Report No. DT-041-05 to DT-043-05 stated that the urine samples
taken from Ambre and her coaccused were positive for the presence of shabu while Physical
Science Report No. D-149-05 showed that the items seized from them were all found positive for
traces of shabu.8

The Version of the Defense

Ambre vehemently denied the charges against her. Through the testimonies of Ambre, Mendoza
and Lily Rosete (Rosete), the defense claimed that on the afternoon of April 20, 2005, Ambre was
inside the residential compound in Caloocan to buy malong; that her mother asked Rosete to
accompany her because Rosete’s daughter-in-law, Nancy Buban (Buban), was a resident of Phase
12, Caloocan City, an area inhabited by Muslims; that when they failed to buy malong, Rosete and
Buban left her inside the residential compound to look for other vendors; that ten minutes later, the
policemen barged inside the compound and arrested her; that she was detained at the Caloocan
City Jail where she met Castro, Mendoza and Tagoranao; and that she was not brought to the
Philippine National Police (PNP) Crime Laboratory for drug testing.
Rosete further testified that after she had left Ambre inside the compound to find other malong
vendors, she returned fifteen minutes later and learned that the policemen had arrested people
inside the compound including Ambre.

Mendoza, who was convicted in Criminal Case No. C-73029, claimed that no pot session took place
on the afternoon of April 20, 2005. She averred that she and Ambre were merely inside the
residential compound, when policemen suddenly came in and pointed guns at them.9

The Ruling of the Regional Trial Court

On September 1, 2008, the RTC rendered its decision declaring that the prosecution was able to
establish with certitude the guilt of Ambre for illegal use of methylamphetamine hydrochloride or
violation of Section 15, Article II of R.A. No. 9165. The RTC, however, acquitted her of the crime of
violation of Section 12, Article II of R.A. No. 9165 for failure of the prosecution to prove with
particularity the drug paraphernalia found in her possession. The trial court adjudged:

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

1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE Y CAYUNI not guilty of the
crime of Violation of Section 12, Article II, RA 9165;

2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y CAYUNI guilty beyond
reasonable doubt of the crime of Violation of Sec. 15, Art. II RA 9165 and hereby sentences her to
be confined and rehabilitated at the government rehabilitation center in Bicutan, Taguig, Metro
Manila for a period of six (6) months. The six (6) month period of rehabilitation shall commence only
from the time that she is brought inside the rehabilitation center and its promulgation by this court for
which the accused shall be notified.

The shabu subject of these cases is hereby confiscated in favor of the government to be disposed of
in accordance with the rules governing the same.

Costs against the accused.

SO ORDERED.10

The Decision of the Court of Appeals

Undaunted, Ambre appealed the judgment of conviction before the CA professing her innocence of
the crime. On November 26, 2009, the CA rendered the assailed decision, the dispositive portion of
which reads:

WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated September
1, 2008 of the Regional Trial Court, Branch 123, Caloocan City is AFFIRMED.

SO ORDERED.11

Ambre's motion for reconsideration was denied by the CA in its March 9, 2010 Resolution. Hence,
she filed this petition
 THE ISSUES

Ambre raised the following issues:

1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER
ON APRIL 20, 2005 (THAT YIELDED ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH
THE MANDATED LEGAL PROCEDURES IN CONDUCTING A BUY-BUST OPERATION.

2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER
WERE PART AND PARCEL OF THE DISMISSED AND DISCREDITED BUY-BUST OPERATIONS
OF THE POLICE AND/OR "FRUITS OF THE POISONOUS TREE" AND HENCE, WERE ILLEGAL.

3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE SEIZED DURING THE
ILLEGAL BUY-BUST OPERATION ARE ADMISSIBLE AS EVIDENCE.

4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE FAVORABLE TESTIMONY

OF PETITIONER'S WITNESS, HER CO-ACCUSED, KAYCEE MENDOZA, ON THE GROUND
THAT THE LATTER EARLIER PLED GUILTY TO SUCH ILLEGAL USE, HAD VIOLATED THE
RULE ON INTER ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE RULES OF COURT.

5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6) MONTHS REHABILITATION IN

A GOVERNMENT CENTER IS A NULLITY GIVEN THE LACK OF CONFIRMATORY TEST AS
REQUIRED UNDER R.A. 9165 ("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002"). 12

A perusal of the pleadings filed by the parties leads the Court to conclude that the case revolves on
the following core issues:

1.) Whether the warrantless arrest of Ambre and the search of her person was valid; and

2.) Whether the items seized are inadmissible in evidence.

Essentially, Ambre insists that the warrantless arrest and search made against her were illegal
because no offense was being committed at the time and the police operatives were not authorized
by a judicial order to enter the dwelling of Sultan. She argues that the alleged "hot pursuit" on Sultan
which ended in the latter's house, where she, Mendoza and Castro were supposedly found having a
pot session, was more imaginary than real. In this regard, Ambre cites the April 29, 2005 Resolution
of the Prosecutor's Office of Caloocan City dismissing the case against Aderp and Sultan for
insufficiency of evidence because the April 20, 2005 buy-bust operation was highly suspicious and
doubtful. She posits that the items allegedly seized from her were inadmissible in evidence being
fruits of a poisonous tree. She claims that the omission of the apprehending team to observe the
procedure outlined in R.A. No. 9165 for the seizure of evidence in drugs cases significantly impairs
the prosecution’s case. Lastly, Ambre maintains that she was not subjected to a confirmatory test
and, hence, the imposition of the penalty of six months rehabilitation was not justified.

For the State, the Office of the Solicitor General (OSG) urges this Court to affirm the challenged
decision for failure of Ambre to show that the RTC committed any error in convicting her of illegal
use of shabu. The OSG insists that Ambre was lawfully arrested in accordance with Section 5, Rule
113 of the Rules of Court. It is of the opinion that the credible and compelling evidence of the
prosecution could not be displaced by the empty denial offered by Ambre.
 THE COURT'S RULING

The conviction of Ambre stands.

Section 2, Article III13 of the Constitution mandates that a search and seizure must be carried out
through or on the strength of a judicial warrant predicated upon the existence of probable cause,
absent which such search and seizure becomes "unreasonable" within the meaning of said
constitutional provision. Evidence obtained and confiscated on the occasion of such an
unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any
purpose in any proceeding.14

This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized
exception established by jurisprudence is search incident to a lawful arrest.15 In this exception, the
law requires that a lawful arrest must precede the search of a person and his belongings. As a rule,
an arrest is considered legitimate if effected with a valid warrant of arrest. Section 5, Rule 113 of the
Rules of Criminal Procedure, however, recognizes permissible warrantless arrests:

"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 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. (Emphasis supplied)

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a)
arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge
of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime
which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his case or has escaped while being
transferred from one confinement to another.

In arrest in flagrante delicto, the accused is apprehended at the very moment he is committing or
attempting to commit or has just committed an offense in the presence of the arresting officer.
Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to
be arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view
of the arresting officer.16

In the case at bench, there is no gainsaying that Ambre was caught by the police officers in the act
of using shabu and, thus, can be lawfully arrested without a warrant. PO1 Mateo positively identified
Ambre sniffing suspected shabu from an aluminum foil being held by Castro.17 Ambre, however,
made much of the fact that there was no prior valid intrusion in the residence of Sultan. The
argument is specious.
Suffice it to state that prior justification for intrusion or prior lawful intrusion is not an element of an
arrest in flagrante delicto. Thus, even granting arguendo that the apprehending officers had no legal
right to be present in the dwelling of Sultan, it would not render unlawful the arrest of Ambre, who
was seen sniffing shabu with Castro and Mendoza in a pot session by the police officers.
Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were also duty-bound to arrest
Ambre together with Castro and Mendoza for illegal use of methamphetamine hydrochloride in
violation of Section 15, Article II of R.A. No. 9165.

To write finis to the issue of validity and irregularity in her warrantless arrest, the Court holds that
Ambre is deemed to have waived her objections to her arrest for not raising them before entering her
plea.18

Considering that the warrantless arrest of Ambre was valid, the subsequent search and seizure done
on her person was likewise lawful. After all, a legitimate warrantless arrest necessarily cloaks the
arresting police officer with authority to validly search and seize from the offender (1) dangerous
weapons, and (2) those that may be used as proof of the commission of an offense.19

Further, the physical evidence corroborates the testimonies of the prosecution witnesses that
Ambre, together with Castro and Mendoza, were illegally using shabu. The urine samples taken from
them were found positive for the presence of shabu, as indicated in Physical Science Report No.
DT-041-05 to DT-043-05. It was likewise found that the items seized from the three were all positive
for traces of shabu as contained in Physical Science Report No. D-149-05 dated April 21, 2005.
These findings were unrebutted.

Ambre's assertion that her conviction was incorrect, because the evidence against her was obtained
in violation of the procedure laid down in R.A. No. 9165, is untenable.

While ideally the procedure on the chain of custody should be perfect and unbroken, in reality, it is
not as it is almost always impossible to obtain an unbroken chain.20 This Court, however, has
consistently held that the most important factor is the preservation of the integrity and evidentiary
value of the seized items.21 In this case, the prosecution was able to demonstrate that the integrity
and evidentiary value of the confiscated drug paraphernalia had not been compromised. Hence,
even though the prosecution failed to submit in evidence the physical inventory and photograph of
the drug paraphernalia with traces of shabu, this will not render Ambre's arrest illegal or the items
seized from her inadmissible.

Records bear out that after the arrest of Ambre with Castro and Mendoza, the following items were
confiscated from them: one (1) unsealed sachet with traces of suspected shabu; one (1) strip of
rolled up aluminum foil with traces of suspected shabu; one (1) folded piece of aluminum foil with
traces of white crystalline substance also believed to be shabu; and two (2) yellow disposable
lighters. Upon arrival at the police station, PO3 Moran turned over the seized items to PO2 Hipolito
who immediately marked them in the presence of the former. All the pieces of evidence were placed
inside an improvised envelope marked as "SAID-SOU EVIDENCE 04-20-05." With the Request for
Laboratory Examination, PO2 Hipolito brought the confiscated items to the PNP Crime Laboratory
and delivered them to P/Insp. dela Rosa, a forensic chemist, who found all the items, except the
disposable lighters, positive for traces of shabu. Verily, the prosecution had adduced ample
evidence to account for the crucial links in the chain of custody of the seized items.

Even if the Court strikes down the seized drug paraphernalia with traces of shabu as inadmissible,
Ambre will not be exculpated from criminal liability. First, let it be underscored that proof of the
existence and possession by the accused of drug paraphernalia is not a condition sine qua non for
conviction of illegal use of dangerous drugs. The law merely considers possession of drug
paraphernalia as prima facie evidence that the possessor has smoked, ingested or used a
dangerous drug and creates a presumption that he has violated Section 15 of R.A. No. 9165.22

Secondly, the testimonies of the police officers have adequately established with moral certainty the
commission of the crime charged in the information and the identity of Ambre as the perpetrator. At
this juncture, the Court affirms the RTC's finding that the police officers' testimonies deserve full faith
and credit. Appellate courts, generally, will not disturb the trial court's assessment of a witness'
credibility unless certain material facts and circumstances have been overlooked or arbitrarily
disregarded.23 The Court finds no reason to deviate from this rule in this case.

Likewise, the Court upholds the presumption of regularity in the performance of official duties. The
presumption remains because the defense failed to present clear and convincing evidence that the
police officers did not properly perform their duty or that they were inspired by an improper motive.
The presumption was not overcome as there was no showing that PO3 Moran, PO1 Mateo, PO2
Hipolito, and P/Insp. dela Rosa were impelled with improper motive to falsely impute such offense
against Ambre.

As against the positive testimonies of the prosecution witnesses, the defense of denial offered by
Ambre must simply fail. Bare denials cannot prevail over positive identification made by the
prosecution witnesses.24 Besides, this Court has held in a catena of cases that the defense of denial
or frame-up has been viewed with disfavor for it can just as easily be concocted and is a common
and standard ploy in most prosecutions for violation of the Dangerous Drugs Act.25

Finally, Ambre contends that the penalty of six months of rehabilitation in a government center
imposed on her was a nullity, in view of the alleged lack of confirmatory test. The Court is not
persuaded.

It must be emphasized that in no instance did Ambre challenge, at the RTC, the supposed absence
of confirmatory drug test conducted on her. Ambre only questioned the alleged omission when she
appealed he·r conviction before the CA. It was too late in the day for her to do so. Wellentrenched is
the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the
basic rules of fair play and justice.26

WHEREFORE, the petition is DENIED. The assailed November 26, 2009 Decision and the March 9,
2010 Resolution of the Court of Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 117487 December 12, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.:

The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to
play the role of an infallible God by exercising the divine right to give or take away life. We cannot err
in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the
worst of crimes — murder by the judiciary.

The records reveal that appellant Arnel Alicando was charged with the crime of rape with
homicide1 in an Information which reads:

That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within
the jurisdiction of this Court, said accused, did then and there willfully, unlawfully and
feloniously and by means of force, violence and intimidation to wit: by then and there
pinning down one KHAZIE MAE PENECILLA, a minor, four years of age, choking her
with his right hand, succeeded in having carnal knowledge with her and as a result
thereof she suffered asphyxia by strangulation fractured cervical vertebra and
lacerations of the vaginal and rectal openings causing profuse hemorrhages and
other injuries which are necessarily fatal and which were the direct cause of her
death.

CONTRARY TO LAW.

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the
PAO, Department of Justice. Appellant pleaded guilty.

After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also
set the case for reception of evidence for the appellant, if he so desired.2

The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of
the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in
his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every
now and then would take leave and return. Appellant was living in his uncle's house some five (5)
arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length
from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the window of
appellant's house. She offered to buy her "yemas" but appellant closed the window. Soon she heard
the victim crying. She approached appellant's house and peeped through an opening between its
floor and door. The sight shocked her appellant was naked, on top of the victim, his left hand
choking her neck. She retreated to her house in fright. She gathered her children together and
informed her compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also
overcome with fear and hastily left.

Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He
and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was
aware that the Penecillas were looking for their daughter but did not tell them what she knew.
Instead, Relada called out appellant from her window and asked him the time Khazie Mae left his
house. Appellant replied he was drunk and did not know.

As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to
answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her
parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of heart. She
informed Romeo Penecilla and his wife Julie Ann, that appellant committed the crime. Forthwith,
appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without
the assistance of counsel. On the basis of his uncounselled verbal confession and follow up
interrogations, the police came to know and recovered from appellant's house, Khazie Mae's green
slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained T-shirt all of which were
presented as evidence for the prosecution.

The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy
report reveals the following injuries sustained by the victim:

HEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right anterior neck,
down to the medial portion of the left and right infraclavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right antero- inferior
chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac crest.

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

 EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,

left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum..

b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION.

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.

Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the
proximate cause of Khazie Mae's death was asphyxia by strangulation.

On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz:

WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond
reasonable doubt for (sic) the Crime of Rape with Homicide penalized under Article
335 of the Revised Penal Code as amended by paragraphs 6 and 7 (No. 4) Section
11 of Republic Act No. 7659. Arnel Alicando is hereby sentenced to suffer a (sic)
penalty of death and to indemnify the heirs of the offended party, Khazie Mae D.
Penecilla, the sum of P50,000.00.

The death sentence shall be executed by putting the person under sentence to death
by electrocution (electric chair). As soon as facilities are provided by the Bureau of
Prisons, the method of carrying out his sentence shall be changed by gas poisoning
(sic).
 Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the grievous
offense he had committed. He deserves no mercy.

Cost against the accused.

SO ORDERED.

The case is before us on automatic review considering the death penalty imposed by the trial court.
A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the
decision of the trial court as a travesty of justice.

We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both
substantive and procedural. The conviction is on an amalgam of inadmissible and incredible
evidence and supported by scoliotic logic.

First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a)
— of Rule 116 on arraignment. Said section provides:

xxx xxx xxx

Sec. 1. Arraignment and plea; how made. —

(a) The accused must be arraigned before the court where the complaint or
information has been filed or assigned for trial. The arraignment must be made in
open court by the judge or clerk by furnishing the accused a copy of the complaint or
information with the list of witnesses, reading the same in the language or dialect
known to him and asking him whether he pleads guilty or not guilty. The prosecutor
may, however, call at the trial witnesses other than those named in the complaint or
information.

The reading of the complaint or information to the appellant in the language or dialect known
to him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It
implements the constitutional right of an appellant ". . . to be informed of the nature and
cause of the accusation against him."3 The new rule also responds to the reality that the
Philippines is a country divided by dialects and Pilipino as a national language is still in the
process of evolution.4 Judicial notice can be taken of the fact that many Filipinos have limited
understanding either of the Pilipino or English language, our official languages for purposes
of communication and instruction. 5 The importance of reading the complaint or information to
the appellant in the language or dialect known to him cannot thus be understated.

In the case at bar, the records do not reveal that the Information against the appellant was read in
the language or dialect known to him. The Information against the appellant is written in the English
language. It is unbeknown whether the appellant knows the English language. Neither is it known
what dialect is understood by the appellant. Nor is there any showing that the Information couched in
English was translated to the appellant in his own dialect before his plea of guilt. The scanty
transcript during his arraignment, reads:6

xxx xxx xxx

Prosecutor Edwin Fama — Appearing as public prosecutor

 Atty. Rogelio Antiquiera — For the accused, Your Honor. Ready for arraignment.

Interpreter — (Reading the information to the accused for arraignment and pre-trial.)

Note: (After reading the information to the accused, accused pleads guilty)

One need not draw a picture to show that the arraignment of the appellant is a nullity. It
violated section 1(a) of Rule 116, the rule implementing the constitutional right of the
appellant to be informed of the nature and cause of the accusation against him. It also
denied appellant his constitutional right to due process of law.7 It is urged that we must
presume that the arraignment of the appellant was regularly conducted. When life is at stake,
we cannot lean on this rebuttable presumption. We cannot assume. We must be sure.

Second. The plea of guilt made by the appellant is likewise null and void. The trial court violated
section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section provides:

Sec. 3. Plea of guilty to capital offense; reception of evidence.—

When the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the consequences
of his plea and require the prosecution to prove his guilt and the precise degree of
culpability. The accused may also present evidence in his behalf.

The records reveal how the trial judge inadequately discharged this duty of conducting a
"searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following:8

Note (After reading the information to the accused,

accused pleads guilty.)

Court Question (sic) of the court to the accused.

Q Considering that this is a crime and under the

amended law is a heinous crime, because of your
plea of guilty without the consent or even against the
discretion of the court, the court will give you a
mandatory death penalty because of the crime
charged, do you understand?

Accused Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary

will or without any force or intimidation from any one
or whatever?

Accused None, Your Honor.

Q Are you sure?

Accused Yes, Your Honor.

 Q Or maybe because you were manhandled or
maltreated by anyone and that will just be the
consideration for you to plead guilty?

Accused No, Your Honor.

Court Were you not manhandled, please let us see

your body?

Note (Accused raised his prison uniform or shirt and

showed to the court his body from waist up.)

Accused No, Your Honor.

Court You were not maltreated in the jail?

Accused No, Your Honor.

Court Please let us see whether you have bruises so

that you will be examined by a physician to the order
of the court?

Accused No, Your Honor.

Court If you will plead guilty, that plea of guilty has no

use because there will be a mandatory death penalty,
do you still insist on your plea of guilty?

Accused Yes, Your Honor.

Court If you plead guilty to the crime charged there

will be some effects on your civil rights hut not until
the decision will be affirmed by the Supreme Court.

Accused Yes, Your Honor.

Note (See Order dated June 28, 1994 attached to the

records of this case.)

In the next hearing on July 11, 1994, the following verbal exchange transpired, viz:9

xxx xxx xxx

Fiscal Fama: Appearing as the public prosecutor,

ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera: For the accused, Your Honor.

 Court Before the court will proceed with the reception
of evidence by the prosecution Arnel Alicando, please
come here. (at this juncture, Arnel Alicando, come
near to the court)

The court is warning you again that this is reception of

evidence by the prosecution after you plead guilty to
the crime charged at, do you understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty

of rape with homicide?

A Yes, Your Honor.

Q Do you still insist that your plea of guilty is voluntary

without force, intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of

evidence, the imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist on your plea of

guilty?

A Yes, Your Honor.

Court Okey, proceed.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the
decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of cases. 11 The
bottom line of the rule is that the plea of guilt must be based on a free and informed judgment. Thus,
the searching inquiry of the trial court must be focused on: (1) the voluntariness of the plea, and (2)
the full comprehension of the consequences of the plea. The questions of the trial court failed to
show the voluntariness of the plea of guilt of the appellant nor did the questions demonstrate
appellant's full comprehension of the consequences of his plea. The records do not reveal any
information about the personality profile of the appellant which can serve as a trustworthy index of
his capacity to give a free and informed plea of guilt. The age, socio-economic status, and
educational background of the appellant were not plumbed by the trial court. The questions were
framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will
be noted too that the trial court did not bother to explain to the appellant the essential elements of
the crime of rape with homicide.

A cursory examination of the questions of the trial court to establish the voluntariness of appellant's
plea of guilt will show their utter insufficiency. The trial court simply inquired if appellant had physical
marks of maltreatment. It did not ask the appellant when he was arrested, who arrested him, how
and where he was interrogated, whether he was medically examined before and after his
interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the
following damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing
that after his arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma,
viz:

c-0262-94

INFORMATION

2:50 PM, — P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC,
informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this date
when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of Rizal,
Palapala Zone I, CP, been arrested and mobbed by the irrate residents of Zone II
Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the
victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place
who was discovered dead under the house thereat. Suspect when turned over to this
office and put on lock up cell was also mobbed by the angry inmates thus causing
upon him hematoma contusion on different parts of his body.

Likewise, the trial court's effort to determine whether appellant had full comprehension of the
consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory death
penalty without explaining the meaning of "mandatory" It did not inform the appellant of the indemnity
he has to pay for the death of the victim. It cautioned appellant there ". . . will be some effects on
your civil rights" without telling the appellant what those "effects" are and what "civil rights" of his are
involved.

Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We
stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot rest
alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of guilt,
the trial court must require the prosecution to prove the guilt of the appellant and the precise degree
of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt
even in capital offenses is sufficient to sustain a conviction charged in the information without need
of further proof. The change is salutary for it enhances one of the goals of the criminal process which
is to minimize erroneous conviction. We share the stance that "it is a fundamental value
determination of our system that it is far worse to convict an innocent person than let a guilty man go
free. 12

Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet, were considered by the trial court in convicting the appellant.

Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution.
To quote its Decision, 13 viz:

xxx xxx xxx

Further, there are physical evidence to prove Khazie was raped. These consists of a
pillow with bloodstains in its center14 and the T-shirt 15 of the accused colored white
with bloodstains on its bottom. These physical evidence are evidence of the highest
order. They strongly corroborate the testimony of Luisa Rebada that the victim was
raped.
These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City
PNP as a result of custodial interrogation where appellant verbally confessed to the crime
without the benefit of counsel. PO3 Tan admitted under cross-examination, viz: 16

xxx xxx xxx

CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:

Q Mr. Witness, when for the first time did you see
Arnel Alicando?

A June 13, 1994, when I arrested him.

Q Previous to that you have never seen him?

A Yes, sir.

Q When for the first time did you start investigating

Arnel Alicando?

A After I finished investigating the body of the victim,

Khazie Mae Penecilla.

Q And that was also after you were informed that

Arnel Alicando was a suspect in the raping of Khazie
Mae Penecilla?

A Yes, sir

Atty. Antiquiera:

Q And who was that person who informed you of the

suspect?

A Luisa Rebada.

Q Mrs. Rebada who is the witness in this case?

A Yes, sir.

Q And you started investigating Arnel Alicando in the

morning of June 13, 1994?

A Yes, sir.

Q How long did you interrogate Arnel Alicando in the

morning of June 13, 1994?
A I cannot remember the length of time I investigated
him.

Q Did it take you the whole morning of June 13, 1994

in interrogating and investigating Arnel Alicando?

A Yes, sir.

Q And the investigation you conducted continued in

the afternoon of the same date?

A Yes, sir.

Q The following day, June 14, 1994, you still

investigated and interrogated Arnel Alicando.

A Yes, sir.

Q And when did you stop, finally, investigating and

interrogating Arnel Alicando?

A After I finished recovering all the exhibits in relation

to this case.

Q What date did you stop your investigation?

A June 14, 1994, when I finished recovering the white

T-shirt and pair of earring.

Atty. Antiquiera:

Q You testified in this case, Mr. Witness, you never

informed the court that you apprised the accused of
his constitutional rights, is that correct?

A I apprised him.

Q My question is, during your testimony before this

court under the direct examination of the prosecution
you never informed the court that you apprised the
accused of his constitutional rights?

Pros. Fama:

I did not ask him that question. How will he answer?

Court:

Sustained.
 Atty. Antiquiera:

Q When did you inform, the date when you informed

Alicando of his Constitutional rights?

A On June 13.

Q On what hour did you inform him?

A After the witness identified him.

Q What constitutional rights did you inform Alicando

of?

A The right to remain silent, and right to get his lawyer

and I have interpreted in Visayan language.

Q And during your investigation for almost two (2)

days the accused was never represented by counsel,
is that correct?

A Yes, sir.

Atty. Antiquiera:

Q Are you aware of the law that enjoins a public

officer to inform the person of his constitutional rights?

A Yes, sir.

That is all, Your Honor.

It is now familiar learning that the Constitution has stigmatized

as inadmissible evidence uncounselled confession or admission. Section 12 paragraphs (1)
and (3) of Article III of the Constitution provides:

xxx xxx xxx

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

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible against him.
In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important
confession of the appellant in writing. Neither did he present any writing showing that appellant
waived his right to silence and to have competent and independent counsel despite the blatant
violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow
into the records and illicitly used it in sentencing him to death.

It is not only the uncounselled confession that is condemned as inadmissible, but also evidence
derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence derived
from the uncounselled confession illegally extracted by the police from the appellant. Again, the
testimony of PO3 Tan makes this all clear, viz: 17

xxx xxx xxx

Q Did the accused Arnel Alicando accompany you to the place of the
incident?

A Yes, sir.

Q When you arrived at the place of the incident what did you do?

A He pointed to the fish basin.

Q Can you identify this fish basin which you said pointed to you by
Arnel Alicando?

A Yes, sir.

Q Please point?

A (Witness pointing to the fish basin already marked as Exhibit "H".)

Q Did you ask the accused what he did with this fish basin?

A I asked the accused what he did with the fish basin and he
answered that he used the fish basin to cover Khazie Mae Penecilla
when she was already dead.

Pros. Fama:

Q You mean to say to conceal the crime?

A Yes, sir.

Q What else aside from this fish basin, what else did you recover?

A At around 7 o'clock in the evening he further pointed to us the old

mat and the pillow wherein he layed the victim Khazie Mae Penecilla

Q You mean to say that you returned back to the scene of the
incident that time?
A It was already night time and it was only Kagawad Rodolfo Ignacio,
my companion, who went to the place of the incident.

Q You mean to say you were verbally instructed by the accused?

A Yes, sir.

Q In what particular place did you recover those things?

A Inside the room where he raped the child.

Q Whose house is that?

A The house of Imelda Alicando.

Q The wife of Romeo Alicando?

A Yes, sir.

Q In what particular place is that situated?

A Inside the room where the accused was sleeping at Rizal-Palapala.

Pros. Fama:

Q You mean to say inside that room the victim was raped by the
accused?

A Yes, sir.

Q Can you point that pillow which you said you recovered inside the
room of Imelda Alicando?

A Yes, sir.

Q And the mat?

A (Witness taking out from the fish basin the mat and pillow.)

Q Did you find something on the pillow?

A The pillow have bloodstain in the middle.

. . This was already marked as Exhibit "J", Your Honor and the mat
as Exhibit "I".

Q Aside from this what did you recover from the place of incident?

A On June 14, 1994, at about 10:00 o'clock in the morning the

accused Arnel Alicando further informed me that he kept the gold
 earring of the victim and her clothes inside the room of the house of
Imelda Alicando.

Q Where?

A I saw the clothes of Khazie Mae Penecilla inside the room where
the rape took place hanged on the clothes line. And I found the pair of
earring at the bamboo post of the fence.

Court:

Q Where is that bamboo post of the fence situated?

A Around the fence of Imelda Alicando situated at the from gate on

the right side.

Pros. Fama:

Q You mean to say you returned back on June 14, you recovered the
items accompanied by the accused?

A No more, I only followed his direction.

Q He made verbal direction to you?

A Yes, sir.

Q Can you please show us the white t-shirt?

A (Witness taking out a white t-shirt from the fish basin.)

Q Please examine that white t-shirt?

A The t-shirt have a bloodstain.

We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also
adopted the libertarian exclusionary rule 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. 18 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. 19 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 it 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. 20 We applied
this exclusionary rule in the recent case of People vs. Salanga, et al., 21 a ponencia of Mr.
Justice Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio
lass. He was, however, illegally arrested. Soldiers took him into custody. They gave him a
body search which yielded a lady's underwear. The underwear was later identified as that of
the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear
 allegedly taken from the appellant is inadmissible in evidence, being a so-called "fruit of the
poisonous tree." 22

But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial
court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that the victim
was raped." For one, there was no basis for the trial court to conclude that the stains on the pillow
and t-shirt were human bloodstains. The pillow and the t-shirt were not examined by any expert. To
hold that they were human bloodstains is guesswork. For another, there was no testimony that the
stains were caused by either the blood of the appellant or the victim. In addition, there was no
testimony that the t-shirt was the one worn by the appellant when he allegedly committed the crime.
It must also be noted that it is not unnatural for appellant to have bloodstains on his shirt. He is a
butcher by occupation. Romeo Penecilla himself, the father of the victim, testified he knows the
appellant "because he used to accompany me during butchering of animals." 23

The burden to prove that an accused waived his right to remain silent and the right to counsel before
making a confession under custodial interrogation rests with the prosecution. It is also the burden of
the prosecution to show that the evidence derived from confession is not tainted as "fruit of the
poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1
of Section 12 of Article III of the Constitution provides only one mode of waiver — the waiver must
be in writing and in the presence of counsel. In the case at bar, the records show that the
prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the
appellant failed to make a timely objection to the introduction of these constitutionally proscribed
evidence. The lack of objection did not satisfy the heavy burden of proof that rested on the
prosecution.

There is no and there ought not to be any disagreement on basic principles. The Court should be
concerned with the heinousness of the crime at bar and its despicable perpetration against a 4-year
old girl, an impersonation of innocence itself. The Court should also be concerned with the
multiplication of malevolence in our midst for there is no right to be evil, and there are no ifs and buts
about the imposition of the death penalty as long as it remains unchallenged as part of the laws of
our land. These concerns are permanent, norms hewn in stone, and they transcend the
transitoriness of time.

Be that as it may, our commitment to the criminal justice system is not only to convict and punish
violators of our laws. We are equally committed to the ideal that the process of detection,
apprehension, conviction and incarceration of criminals should be accomplished with fairness, and
without impinging on the dignity of the individual. In a death penalty case, the Court cannot rush to
judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our
escutcheon of justice.

In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural
irregularities committed by, and the inadmissible evidence considered by the trial court. In Binabay
vs. People, et al., 24 ponencia of Mr. Chief Justice R. Concepcion, this Court held that no valid
judgment can be rendered upon an invalid arraignment. Since in the case at bar, the arraignment of
the appellant is void, his judgment of conviction is also void. In fairness to the appellant, and in
justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is
no philosophy of punishment that allows the State to kill without any semblance of fairness and
justice.

IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando
of the crime of Rape with Homicide and sentencing him to suffer the penalty of death is annulled and
set aside and the case is remanded to the trial court for further proceedings. No costs.
SO ORDERED.

Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco and Panganiban,
JJ., concur.

Separate Opinions

KAPUNAN, J., dissenting:

The civilized mind normally recoils at the idea of taking a man's life by way of retribution for the
commission of a crime. However, every so often, a crime so dastardly and repulsive comes along
that even an individual usually predisposed towards rehabilitating the hard-core criminal would no
longer wish to suffer in silent rage at society's kid-glove treatment of such offender, but would readily
opt to exact a commensurate requital in the form of capital punishment where circumstances so
demand.

Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that setting
absolute outer limits on deviance is a necessary component of group identification and survival.
Justice Oliver Wendell Holmes may have sensed this truth when he wrote, in The Common
Law (1881), "The first requirement of a sound body of law is that it should correspond with the actual
feelings and demands of the community, whether right or wrong (1938 ed:, p. 41)."1

Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and wanton
destruction of property affecting the nation's efforts towards sustainable development and prosperity
while at the same time undermining the people's faith in the Government, Congress enacted
Republic Act 7659,2 imposing capital punishment on certain heinous crimes.

The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at bench
belong to this genre.

A totally innocent child was forever denied the opportunity to enjoy life beyond the age of four by the
gruesome and hideous acts allegedly committed by the appellant who, according to the prosecution,
was not content merely with satisfying his beastly desires on her, but also strangled her to death.
Whether or not the circumstances of the present case require the imposition of the death penalty is
the ultimate issue before us. After a thorough review of the facts and the evidence, I am afraid, I
have to dissent from the majority. The legal evidence available to us overwhelmingly supports the
lower court's conclusions. We should not shirk from our legal duty to impose the death penalty.

In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was having a
drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his (Romeo's) house at
Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left, except for the
appellant. Appellant was residing at his uncle's house about five (5) arm's length away from the
Penecilla's house.

When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He and his
wife looked for her until 1:00 in the morning to no avail.
The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering the call
of nature outside his house, he chanced the dead body of Khazi Mae. Immediately, the girl's parents
were informed. The small, lifeless body was brought to their house.

The matter was reported to the police at once. At this point, Luisa Rebada, who lived about 1-1/2
arm's length away from the house of appellant related to the girl's distraught parents what she knew.3

Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the window of
appellant's house. She called out to her and offered to buy "yemas," for her. Appellant suddenly
closed the window. Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity aroused, she
crept two steps up the appellant's house, peeped through an opening between the floor and the
door, and saw appellant naked on top of Khazi Mae, his right hand choking the girl's neck. Rebada
became frightened and went back to her house to gather her children. She told her compadre,
Ricardo Lagranai who was in her house at that time, of what she saw. The latter got nervous and
left. That evening when she heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae left his house. Appellant
replied that he did not know since he was drunk.4 With Luisa Rebada's revelation, appellant was
arrested.

During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and killing
Khazi Mae.5 The police were able to recover from appellant's house Khazi Mae's green slippers, a
pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with a blood stain
in the middle, and a stained T-shirt owned by appellant.

An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:

BEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infra-
clavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left

chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left

iliac crest.

ON OPENING THE SKULL & THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

 d) Other internal organs, congested.

EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,

left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum.

b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.6

Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with homicide,
committed as follows:

That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force, violence and intimidation to wit: by
then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of
age, choking her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured cervical
vertebra and lacerations of the vaginal and rectal openings causing profuse
hemorrhages and other injuries which are necessarily fatal and which were the direct
cause of her death thereafter.

CONTRARY TO LAW.7
On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's Office
(PAO), pleaded guilty to the crime charged.

The trial court ordered the prosecution to present evidence to prove the guilt of the accused and the
precise degree of his culpability. It likewise set the case for reception of evidence for the accused, if
he wished to.8

In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal, the
medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police Station; (4)
PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the victim's
father.

The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show that the
proximate cause of death was asphyxia by strangulation.

On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel Alicando.

The case is now before us on automatic review. Disagreeing with the trial court's conviction of the
accused for the crime of Rape with Homicide and the said court's imposition of the death penalty the
Court's majority has decided to overturn the conviction and remand the case to the trial court on the
basis of the following alleged procedural irregularities:

First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and void;

Third, some prosecution evidence, offered independently of the plea of guilt of the appellant, were
inadmissible, yet were considered by the trial court in convicting the appellant.

I strongly disagree.

II

THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING RULES ON

ARRAIGNMENT AND PLEA.

A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.

It is plainly obvious from an examination of the appropriate rules and the record of the case that: 1)
there is absolutely nothing on the record which would warrant a finding the information was not read
in the language or dialect known to the appellant; 2) the rule on arraignment and plea does not
absolutely require that the same be indicated in the record of every criminal case; 3) Rule 116
Section 1 contains nothing requiring trial courts to indicate in the record the fact that the information
was read in the language or dialect known to the defendant, even if the same was in fact actually
complied with by the lower court.

The rule on arraignment, Rule 116 provides the following:

Sec. 1: Arraignment and plea; how made. — (a) The accused must be arraigned
before the court where the complaint or information has been filed or assigned for
 trial. The arraignment must be made in open court by the judge or clerk by furnishing
the accused a copy of the complaint or information with the list of witnesses, reading
the same in the language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecution may, however, call at the trial witnesses other
than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his
plea. Both arraignment and plea shall be made of record, but a failure to enter of
record shall not affect the validity of the proceedings.

(c) If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not
guilty shall be entered for him.

xxx xxx xxx

Sec. 3: Plea of guilty to capital offense; reception of evidence. When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and require
the prosecution to prove his guilt and the precise degree of culpability. the accused
may also present evidence in his behalf.

When an accused is arraigned in connection with a criminal charge, it is the duty of the court to
inform him of its nature and cause so that he may be able to comprehend the charges against him
as well as the circumstances attendant thereto. When the charge is of a serious nature, it becomes
the imperative duty of the lawyer present not only to assist the accused during the reading of the
information but also to explain to him the gravity and consequence of his plea.9

Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty. While
justice demands speedy administration, judges are duty bound to be extra solicitous in seeing to it
that when an accused pleads guilty, he fully understands the meaning of his plea and the import of
an inevitable conviction.10

Consequently, three things need to be accomplished after the accused in a criminal case enters a
plea of guilty to a capital offense:

(1) the court should conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the accused's plea;

(2) the lower court should require the prosecution to prove the guilt of the accused and the precise
degree of his culpability; and

(3) the court should inquire whether or not the accused wishes to present evidence on his behalf and
should allow him to do so if he so desires. A judge who fails to observe this requirement commits a
grave abuse of discretion.

These requirements have been complied with in this case, which the following pertinent portions of
the appellant's arraignment, quoted from the record support:

Prosecutor Edwin Fama —

Appearing as public prosecutor.

Atty. Rogelio Antiquiera —

For the accused, Your Honor. Ready for arraignment.

Interpreter:

(Reading the information to the accused for arraignment and pre-

trial.)

Note:

(After reading the information to the accused, accused pleads guilty.)

Court:

Question of the court to the accused.

Q Considering that this is a crime and under the amended law is a

heinous crime, because of your plea of guilty without the consent or
even against the discretion of the court, the court will give you a
mandatory death penalty because of the crime charged, do you
understand that?

Accused:

Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary will or without
any force or intimidation from any one or whatever.

Accused:

None, Your Honor.

Q Are you sure?

Accused:

Yes, Your Honor.

Q Or maybe because you the were manhandled or maltreated by

anyone and that will just be consideration for you to plead guilty?

Accused:

No, Your Honor.

Court:

Were you not manhandled, please let us see your body?

 Note:

(Accused raised his prison uniform or shirt and showed to the court
his body from waist up).

Accused:

No, Your Honor.

Court:

You were not maltreated in the jail?

Accused:

No, Your Honor.

Court:

Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Accused:

No, Your Honor.

Court:

If you plead guilty to the crime charged there will be some effects on
your civil rights but not until the decision will be affirmed by the
Supreme Court.

Accused:

Yes, Your Honor. 11

Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:

Appearing as the public prosecutor, ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera:

For the accused, Your Honor.

Court:
 Before the court will proceed with the reception of evidence by the
prosecution, Arnel Alicando, please come here. (At this juncture,
Arnel Alicando, come near to the court)

The court is warning you again that this is reception of evidence by

the prosecution after you plead guilty to the crime charged at, do you
understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty of your rape
with homicide?

A Yes, Your Honor.

Q Do you still insist that your plead of guilty is voluntary without force,
intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist of your plea of guilty?

A Yes, Your Honor.

Court:

Okey, proceed. 12

It is crystal clear, from the above-quoted portions of the transcript of the appellant's arraignment that
the trial judge made every effort to ascertain the voluntariness of the plea, and that he repeatedly
warned the defendant of the consequences of his plea. In other words —

A) The above-quoted proceedings satisfy the requirement of a searching inquiry.

There is no hard and fast rule requiring judges to conduct their searching inquiry in the detailed
manner suggested by the majority opinion, although judges should ideally strive to conduct as
detailed an inquiry as would be reasonable under the circumstances. In People v. Dayot13 we held
that:

A searching inquiry . . . compels the judge to content himself reasonably that the
accused has not been coerced or placed under a state
of duress — and that his guilty plea has not therefore been given improvidently —
other by actual threats of physical harm from malevolent quarters or simply because
of his, the judge's, intimidating robes.
 xxx xxx xxx

While there can be no hard and fast rule as to how a judge may conduct searching
inquiry, as to the number and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since each case must be
measured according to its individual merit, taking into consideration the age,
educational attainment, and social status of the accused confessing guilt, among
other things, the singular barometer is that the judge must in all cases, fully convince
himself that: (1) the accused, in pleading guilty, is doing so voluntarily, and (2) he, in
so doing, is truly guilty, and that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their calling
and be worthy ministers of the law.

The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was entered into
voluntarily and that the defendant understood the consequences of his plea. There is no hard and
fast rule, as the Dayot case states, as to the number and character of the questions propounded.
Judges are not required to go into obsessive detail about the psychological, educational and
sociological background of the accused if from a reasonable inquiry conducted through a reasonable
number of questions he is fully convinced a searching inquiry has been met. There is a world of
difference between a fastidious attention to detail which furthers the end of justice and an attention
to detail and minutae bordering on obsessiveness which ultimately obstructs justice and defeats the
purpose of the law. Apropos to this there is —

B) No evidence that the information was not read in a language or dialect known to the
appellant.

The records in an overwhelming number of criminal cases brought before us contain informations
written in the English language without any indication, whatsoever, that the same was translated
from a language or dialect known to the defendant. And yet, even in Metro Manila alone, one
observes that the bulk of proceedings in our trial courts, including the process of arraignment, is
conducted in the vernacular. On the record of these cases normally printed in English, courts hardly
bother to point out those sections of the trial conducted in the vernacular and translated into English.
Because of this widespread practice, which the section on arraignment in the Rules of Court does
not proscribe — the presumption of regularity ought to apply. Otherwise, we should compel
ourselves to review the criminal cases decided by this Court since the imposition of the 1985
Revised Rules on Criminal Procedure and see whether there was any indication that the
arraignment of these criminal cases were, the records therein then ought to show, conducted in a
language known to the defendants. The absurdity of this argument by the defense then becomes
apparent, because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of Rule 116
even states that while the arraignment and plea be made of record failure to enter (the same) of
record shall not affect the validity of the proceedings. Even the rule on placing the arraignment and
plea on record is not absolute, and I cannot see how we can be too strict about indicating on record
whether proceedings were made in the vernacular in cases where in fact the proceedings were so
conducted. The argument that the information was not read in the language or dialect known to
appellant merely grasps on straws and ought to be dismissed for being so inconsequential as to be
bereft of merit.

Moreover, it is a matter of common practice that in every court, especially in the provinces, an
interpreter is always at hand to translate to the parties all questions propounded to them in the
language or dialect known to them. It is also common practice that the transcript of stenographic
notes submitted to the court only reflect the court proceedings conducted in the English language.
While again, the records do not categorically indicate that the information was read in the language
or dialect known to the defendant or that the questions asked were mandated in the vernacular or
dialect understood by him it is presumed, as we have actually done in many cases before this, that
such duty was regularly performed in the absence of any evidence to the contrary.14 In the face of
this common practice, the burden now lies on the defense to prove the contrary. Under the principle
of equal application of laws, we cannot have varying degrees of fastidiousness in the enforcement of
procedural rules based on the gravity of the penalty.

THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT IMPROVIDENT

In the case before us, when the appellant pleaded guilty in open court on June 28, 1994, appellant
was clearly assisted by counsel. The court took pains to repeatedly remind him of the grave
consequences of a plea of guilty, which appellant said he understood. One very such occasion, he
had every opportunity, through his counsel, to ask the court for clarification.

The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of the nature
of his plea and the implications of the plea he was making. On July 11, 1994, before the presentation
of evidence for the prosecution, he was once again asked by the court if he was sure of his plea. At
this time, appellant had more than sufficient time or about thirteen days to reflect on all the possible
consequences of his plea. If indeed it was not voluntarily made during his arraignment, he had
enough time and opportunity with the assistance of his lawyer to recant or at least express
reservations about the same. However, in spite of several warnings given by the trial court on
different occasions, appellant stood pat with his judicial admission.

Significantly, the records fail to indicate that appellant questioned his plea of guilty at any stage of
the trial. He had the opportunity to cross-examine the witnesses for the prosecution. He did not put
up any defense nor denied the inculpatory testimonies, documents and real evidence presented
against him (in fact, it was appellant himself who directed the police investigators to the location of
the various physical evidence, e.g. green slippers, earrings15).

Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the context
of the majority's insistence that herein appellant's plea of guilty was improvident and therefore void.
In the face of the seriousness of the accusations against him, his reticence was eloquent. As the
Court held in People vs. Pillones:

Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a quasi-
confession. An innocent person will at once naturally and emphatically repel an
accusation of crime, as a matter of self-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. (Underhill's
Criminal Evidence, 4th Ed., p. 401.)16

The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to prove the
guilt of the accused and the precise degree of his culpability. No where in the rules does it state that
an extrajudicial confession is a prerequisite for a conviction based on a plea of guilty. While the
constitutional infirmities that attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea of guilt made in open court
and not on the extrajudicial confession, which formed but a small aspect of the prosecution's case.
An extrajudicial confession only serves to confirm or substantiate a plea of guilty entered in open
court. As between an extrajudicial confession and a judicial admission, the latter significantly is given
evidentiary weight. Even assuming the extrajudicial confession in this case could not be given
evidentiary weight because of mistakes committed by authorities in conducting their custodial
investigation and in their gathering evidence, his plea of guilty on arraignment, his repeated
admissions to the same in spite of repeated warnings of the trial judge of the consequences of his
plea and the presence of ample corroborating testimony from a credible eyewitness to the crime
establish appellant's guilt beyond reasonable doubt.

The essence of the plea of guilty in a trial is that the accused admits his guilt freely, voluntarily and
with full knowledge of the consequences and meaning of his act, and with a clear understanding of
the precise nature of the crime charged in the complaint or information.17 A plea of guilty, when
formally entered on arraignment is sufficient to sustain a conviction charged in the information
without need of further proof.18 This, notwithstanding, (in line with the pronouncement of the Court in
several cases19) the trial court received evidence to determine if the appellant erred in admitting his
guilt. Independent of such plea, there was more than sufficient evidence adduced to prove that
appellant indeed committed the acts charged.

THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE EXCEPTIONS

TO THE EXCLUSIONARY RULE

Objections were vigorously raised by the defense regarding certain pieces of evidence obtained by
law enforcement authorities following the uncounseled custodial investigation of the accused in the
case at bench. These objections have been thoroughly threshed out and weighed against the other
factual material obtained at trial in order to determine whether or not, on the balance, the accused's
conviction ought to be sustained, modified in favor of a lesser penalty, or altogether thrown out. I
shall discuss them in the interest of thoroughness.

Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his uncounseled
custodial investigation. Since the information obtained, it has been pointed out, was taken
supposedly in violation of the Constitution, the pieces of evidence derivatively gathered should have
been excluded by the court below, following the fruit of the poisonous tree doctrine.

The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal searches
and seizures or evidence resulting from uncounseled custodial investigations of accused individuals.
The fruit of the poisonous tree doctrine extends these prohibitions to pieces of evidence derivatively
flowing from illegal searches and seizures or from admissions made by accused individuals under
conditions proscribed by the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those exceptions.

The discovery of the victim's body near the house of the accused would have naturally led law
enforcement authorities to undertake a more thorough investigation of the site, particularly in those
areas where the victim was last seen. Assuming local police had enough logistical capabilities to
form two teams to undertake two separate searches, one for physical evidence and other clues and
one for the possible suspects, the evidence objected to would have been inevitably discovered with
a thorough search of the site. Under the circumstances of this case where only one search was
initially conducted (obviously because of logistical reasons), primarily for a suspect, it would have
logically followed had a suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence would have been undertaken,
under conditions which would have validated a warrantless search, where the same physical
evidence would have been inevitably discovered. In other words, with or without appellant's
volunteered information, the pieces of evidence objected to — the blood-stained pillow, the T-shirt
and the victim's earring — would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.

Courts have generally approved the view that it is not necessary to hold that all evidence is fruit of
the poisonous tree. Under one of the recognized exceptions, the more appropriate question in such
cases is whether the evidence to which the objection is made would not have been discovered at all
but for the illegality or would have been discovered anyway by sources or procedures independent
of the illegality. Another exception refuses to treat the doctrine as absolutely sacred if the evidence
in question would have been inevitably discovered under normal conditions.

I submit, that under the peculiar circumstances of this case, the evidence objected to would have
been inevitably discovered anyway. In a long line of cases, courts have recognized that evidence
derived from information obtained illegally is not absolutely inadmissible under the fruit of the
poisonous tree doctrine where it is shown that such evidence would have been inevitably gained
even without the unlawful act.20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the poisonous tree for the reason
that the information which led to his confession, though the product of an illegal search would have
been discovered in the absence of such illegality.21 The Court in Lockridge vs. Superior Court was of
the opinion that where a witness is discovered as a result of illegal police conduct, his testimony is
admissible is he would have been discovered in the normal course of a normally conducted
investigation. 22 These and other recognized limitations to the fruit of the poisonous tree doctrine do
not have the effect of diluting the effect of our exclusionary rules. Rather, they serve the purpose of
the rule well by maintaining a reasonable balance between the need to deny evidence come by
through the exploitation of an illegality on one hand and the need to minimize opportunity for the
defendant in a criminal case to reap an undeserved and socially undesirable bonanza.23 Certainly it
could not be argued that with nothing in their hands, the police would not have gone back to the site
for a better inspection.

THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S CONVICTION

OF THE ACCUSED WITH MORAL CERTAINTY

Assuming arguendo the validity of the defense's arguments over the pieces of evidence recovered
by the police in the case at bench above-mentioned, a thorough review of the evidence utilized by
the trial court leads us to the conclusion that the defendant's conviction would have been sustained,
in any case, without the pieces of evidence objected to.24 Lest we mistake the trees for the forest, a
shifting of the pieces of evidence, and a separation therefrom of the physical evidence objected to
would nevertheless still leave the prosecution with enough legal evidence to convict the accused
with moral certainty. These include:

1. The defendant's own repeated admissions, in the presence of counsel and in open court that he
committed the acts charged;

2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.

Having discussed the first point, I shall go directly to Rebada's testimony, which the majority opinion
let pass without comment. For a better perspective of Rebada's testimony, allow me once again to
quote from the transcript:

Q Can you recall where were you on June 12, 1994, at around 5:30
P.M.?
A Yes, Sir.

Q Where were you?

A I was at home.

Q Where is your house situated?

A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.

Q Do you have any neighbor in that residence of yours at Rizal Pala-

pala?

A Yes, Sir, Arnel Alicando.

Q How far is the house of Arnel Alicando from your house?

A One and a half (1 1/2) arm's length.

Q On that time at 5:30 P.M. have you seen Arnel Alicando?

A Yes, Sir.

Q Where was Arnel Alicando at that time?

A He was upstairs, inside the house of Romeo Alicando.

Q What is the relation of Romeo Alicando to Arnel Alicando if you

know?

A Romeo is the uncle of Arnel.

Q Did Arnel Alicando have any companion while he was in the house
of his uncle, Romeo Alicando?

A Khazie Mae was his companion.

Q You are referring to Khazie Mae Penecilla, the victim in this case?

A Yes, Sir.

Q Aside from them, the two of them, Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the house of Romeo Alicando
at that time?

A No more, only the two of them.

Q Now, at that precise time at 5:30 of June 12, 1994, what have you
observed if you observed any in the house of Romeo Alicando
wherein Arnel Alicando and Khazie Mae Penecilla was at that time?
A I saw the child looking out in the window and I invited her for a
yemas candy, and Arnel Alicando suddenly closed the window.

Q When Arnel Alicando you said closed the window, what did you
observe after that if there is any?

A The child cried.

Q You are referring to the victim, Khazie Mae Penecilla when you
said the child was crying?

A Yes, Sir.

Q And after that, after the child was crying, what have you observed
at that time?

A And then she squealed.

Q After that, what did you do after hearing that and she, the child
squealed, what did you do if there was any?

A So, I went down from the house to the house of Romeo Alicando,
where I saw between an opening between the two slots. I went up
two steps.

Q And then what did you do?

A And so, I peeped between the floor and the door because there
was an opening.

Q Have you seen anything inside that house?

A Yes, Sir.

Q What have you seen if there is any?

A I saw Arnel Alicando who was naked/nude at that time lying on top
of the child wherein his left hand was holding the neck of the child.

Q When you said child, you are referring to the victim, Khazie Mae
Penecilla?

A Yes, Sir.

Q What did you do after seeing that?

A Because I was afraid at that time and I got nervous, so I went down
from that house and went to my own house and gathered my . . . . . . .
Q When you went to your house, was there any person inside your
house?

A My friend.

Q Who is the name of your friend?

A Ricardo Lagrana (Compare).

Q Have you talked to our compare, Ricardo Lagrana who was in your
house? Have you told about the incident that you have seen in the
house of Romeo Alicando wherein Arnel Alicando was at the top of
the victim, Khazie Mae Penecilla, without clothes at all?

A Yes, Sir.

Q What action did your compare do if there was any?

A When I told the incident to my compare he also felt nervous and he

went home.

Q How about on the same day of June 12, 1994, at around 6:00 P.M.,
where were you?

A I was inside the house.

Q And you have observed what is happening in your barangay at that

time?

A Yes, Sir.

Q What have you observed?

A The parents of Khazie Mae Penecilla were looking for her.

Q When you have observed, have you known that the parents of
Khazie Mae Penecilla were looking for her, it did not occur to your
mind to report the incident to the parents of Khazie Mae Penecilla on
what you have seen at that time?

A I did not go out of the house because I was afraid of Arnel

Alicando.

Q Have you seen on the same day after that incident of 5:30 in the
evening, have you seen again Arnel Alicando?

A Yes, Sir.

Q Where?
A I saw Arnel Alicando inside the house going around.

Q Did you talk to him?

A One June 12, 1994, at 10:45 in the evening, I told Arnel Alicando
and asked him, what time did the child go down from the house.

Q Where were you at that time when you asked Arnel Alicando?

A I was inside my house.

Q Because you are very near neighbor to each other?

A Yes, Sir.

Q And it is one and a half (1 1/2) arm's length your house from Arnel
Alicando's house?

A Yes, Sir.

Q Did Arnel Alicando answer you?

A He answered, I do not know because I was drank at that time.

Q How about one June 13, 1994 in the morning at around 8:00
o'clock, what did you observe in your barangay?

A None.

Q You have not observed anything?

A None.

Q Do you know when the parents of the victim, Khazie Mae Penecilla
found their daughter?

A Khazie Mae Penecilla was found at around 8:00 A.M.

Q Of what day?

A June 13, 1994.

Q Why do you know that this Khazie Mae Penecilla was only found
by their parents?

A Because Leopoldo (Torong) Santiago, when he went down from

their house and answered the call of nature, he found the child under
their house. 25
It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of impropriety
or falsehood, is sufficient to convict an accused even if uncorroborated. In this case, Rebada's
testimony was positive and straightforward. I see no reason why the same should not be given the
credence and the weight that it deserves, without our ignoring established principles in the law on
evidence. Such factual findings of the trial court on the issue of credibility of a witness are accorded
great weight and respect on appeal, as it should have been in the instant case, because the trial
court had the every available opportunity to observe the demeanor of the lone witness during the
trial. Her belated reporting of the incident the next morning, to which the defense urged the lower
court to accord great weight, is hardly out of the ordinary.

Individual reactions are motivated by varied and varying environmental factors. There is no standard
norm of human behavioral response when one is confronted with a strange, startling or frightful
experience.26 Fear and self preservation are strong motivating factors. It is common for people to
choose not to get involved when a crime is committed, otherwise there should only be a few
unsolved crimes.27 Rebada, in this case, was obviously terrified with what she saw. Self-preservation
and fear of possible reprisals from the appellant would have initially overwhelmed any desire on her
part to reveal what she had seen during the incident. She tried her best to remain as calm and
casual as possible, and pretend that she did not see anything the instant she saw Alicando, when
she asked appellant what time Khazi Mae got down from his house following the incident.28 Given
these factors, it would have been too much to expect Rebada in her mixed state of dread, fear,
revulsion and instinctive self-preservation to harness superhuman reserves of courage to stop
appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped.29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's distraught
parents, and overcoming her fear with some prodding from her husband, Luisa Rebada was finally
driven by conscience to reveal what she knew the following morning.

The minor inconsistencies in Rebada's testimony are understandable under these circumstances.
However, it should be stressed here that the trial court's conclusions were founded principally on the
direct, positive and categorical assertions made by Rebada as regards material events in the crime.
It is worthy to stress, moreover, that Rebada never wavered in her oral testimony even on intense
cross-examination from the defense. In her affidavit, she declared that she saw Khazi Mae at
appellant's house; that appellant closed the window; and after hearing the child's cry and squeal,
peeped into the opening and saw appellant on top of the victim. These were the very same
declarations she made when she took the witness stand. While she may have wavered on a minor
detail (as to whether it was the right or the left hand of the appellant which was used in choking the
victim) these should not be sufficient to debunk her credibility. 30 She had no reason to falsely testify
against the appellant and there were no possible motives alleged for her to do so. She is not in any
way related to the Penecillas, and there was no evidence adduced to show that she harbored any ill-
feelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive.31

Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient evidence
corroborating and unmistakably pointing to the appellant as the author of the crime. Khazi Mae was
last seen in the company of the appellant. Rebada testified that she saw appellant naked on top of
Khazi Mae. Recovered from the latter's house were Khazi Mae's green slippers, pair of gold
earrings, her dress, bloodied buri mat and pillow. The fact of shoddy police work in the recovery of
these pieces of evidence does not escape us. But whether on not these pieces should have been
admissible is on hindsight hardly relevant in the face of ample legally admissible evidence justifying
the trial court's guilty verdict.

As a last resort, appellant would want to drive home the point that rape was not committed. He
argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push and pull
movement 2) the requested NBI report on the examination of Khazi Mae's underwear to show the
presence or absence of the male semen was not presented; and 3) the autopsy report revealed that
the proximate cause of death was asphyxiation by strangulation.

In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's house to
take a look at the dead body, he looked at Khazi Mae's underwear and saw that it was bloodied. The
underwear was sent to the NBI Laboratory for examination. Considering, however, the inadequate
facilities of the NBI Laboratory at Iloilo, the underwear was referred to Manila for examination. Since
it will take time for the court to wait for the results from Manila, the trial court dispensed with it as this
would only serve as corroborating evidence to the fact of rape.32

Moreover, rape is committed whenever there is penetration, no matter how slight into the genital
organ of the victim.33 The vaginal and anal findings of Dr. Tito Doromal revealed that the lacerated
wound from the fourchette up to the dome of the rectum was caused by a forcible entry of an object.
In view of settled jurisprudence to the effect that rape is committed by the mere touching of the male
genital organ on the vagina, it hardly is relevant whether or not semen or sperm are present or
absent. Absence of emission does not negate rape. Rebada's testimony that she saw appellant
naked on top of the victim when she peeped through an opening between the floor and the door of
appellant's house and the autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly observed by the Solicitor
General, the corpus delicti was there for all to see. The trial court, therefore, did not err in dispensing
with the results of the NBI laboratory examination of Khazi Mae's underwear to determine the
presence of male semen, a fact of little relevance after the rape was established by definitive legal
evidence.

Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same occasion. As we
observed in People v. Yu,34 unity of thought and action in the criminal purpose of the accused cannot
be altered by the circumstances that both the crime of rape and the crime of murder resulted. The
accused had to choke and strangle the girl at the same time that he was satisfying his lust on her.35

Based on all of the foregoing, it is clear and inescapable that appellant committed the heinous crime
or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:

Art. 335 of the same Code is hereby amended to read as follows:

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

xxx xxx xxx

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 circumstances:

xxx xxx xxx

(4) When the victim is a religious or a child below seven (7) years old.
 xxx xxx xxx

Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused with
the crime of subject to our automatic review, it is painfully clear — even to those who have
reservations about imposing the death penalty among us — that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death in this case.

Convictions for the crime of rape have been sustained by this Court in an overwhelming number of
cases on uncorroborated evidence given almost exclusively by the complainant alone. Against this
backdrop (of most cases of rape where reliance is placed solely on the victims allegations) the trial
Court in the case at bench, arrived at its conclusions principally on the basis of two key pieces of
testimonial evidence: 1) the accused's admission of guilt in not one but two occasions in open court
(in the presence of his lawyer) even after being warned on both occasions by the judge of all the
possible consequences of his admission the accused's admission of guilt; and 2) the essentially
uncontradicted testimony of an eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony — which the defense spiritedly tried to magnify — the net
effect of the same was to enhance, not diminish, the testimony of the lone eyewitness because
minor incongruencies are on the whole indicative of honest and unrehearsed declarations and often
amplify the credibility of such declarations. 36 Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one of these testimonies,
standing alone, would have been adequate to obtain the accused's conviction.

In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the death
penalty for specific offenses under Republic Act 7659 has left our courts with no choice but to
impose the penalty for crimes clearly enumerated in the said law. If a court, after leaving no stone
unturned, finds it necessary to impose the penalty, I believe that it does not do so as an infallible
God exercising a divine right to give or take away human life, but as a fallible human institution
recognizing the importance of according majesty to laws so indispensable to maintaining social
order. In the instant case, after a thorough and searching review of the evidence and an evaluation
of the procedural and constitutional objections adduced either in support of an acquittal or of
imposing a less severe penalty it should be fairly obvious to us that the trial court committed no error
in finding the accused guilty as charged. Recognizing our fallible nature, the quantum of evidence
necessary to convict has never been absolute proof beyond any doubt but merely proof beyond
reasonable doubt. The death penalty in the instant case was clearly imposed in conformity with the
mandate of law and the Constitution.

Padilla, Bellosillo, Mendoza and Hermosisima, Jr., JJ., concur.

Separate Opinions

KAPUNAN, J., dissenting:

The civilized mind normally recoils at the idea of taking a man's life by way of retribution for the
commission of a crime. However, every so often, a crime so dastardly and repulsive comes along
that even an individual usually predisposed towards rehabilitating the hard-core criminal would no
longer wish to suffer in silent rage at society's kid-glove treatment of such offender, but would readily
opt to exact a commensurate requital in the form of capital punishment where circumstances so
demand.
Sociological theory at least since Emile Durkheim (1858-1917) has posited the idea that setting
absolute outer limits on deviance is a necessary component of group identification and survival.
Justice Oliver Wendell Holmes may have sensed this truth when he wrote, in The Common
Law (1881), "The first requirement of a sound body of law is that it should correspond with the actual
feelings and demands of the community, whether right or wrong (1938 ed:, p. 41)."1

Thus, impelled by the alarming upsurge of crime resulting in the loss of human lives and wanton
destruction of property affecting the nation's efforts towards sustainable development and prosperity
while at the same time undermining the people's faith in the Government, Congress enacted
Republic Act 7659,2 imposing capital punishment on certain heinous crimes.

The early Spartans had word for such crimes: haineus, hateful, abominable, from the Greek
prefix haton, denoting acts so hatefully or shockingly evil. The acts charged in the case at bench
belong to this genre.

A totally innocent child was forever denied the opportunity to enjoy life beyond the age of four by the
gruesome and hideous acts allegedly committed by the appellant who, according to the prosecution,
was not content merely with satisfying his beastly desires on her, but also strangled her to death.
Whether or not the circumstances of the present case require the imposition of the death penalty is
the ultimate issue before us. After a thorough review of the facts and the evidence, I am afraid, I
have to dissent from the majority. The legal evidence available to us overwhelmingly supports the
lower court's conclusions. We should not shirk from our legal duty to impose the death penalty.

In the afternoon of June 12, 1994, Romeo Penecilla, father of four-year-old Khazi Mae, was having a
drinking spree with Ramil Rodriguez, Remus Goddi and the appellant at his (Romeo's) house at
Barangay Rizal, Zone 1, Pulo Bala, Iloilo. At about 4:30 p.m., everybody left, except for the
appellant. Appellant was residing at his uncle's house about five (5) arm's length away from the
Penecilla's house.

When Romeo Penecilla arrived home at 8:00 that evening, he could not find Khazi Mae. He and his
wife looked for her until 1:00 in the morning to no avail.

The next morning, Leopoldo Santiago, a neighbor, got the shock of his life when, answering the call
of nature outside his house, he chanced the dead body of Khazi Mae. Immediately, the girl's parents
were informed. The small, lifeless body was brought to their house.

The matter was reported to the police at once. At this point, Luisa Rebada, who lived about 1-1/2
arm's length away from the house of appellant related to the girl's distraught parents what she knew.3

Rebada recounted that at about 5:30 of the afternoon before, she saw Khazi Mae at the window of
appellant's house. She called out to her and offered to buy "yemas," for her. Appellant suddenly
closed the window. Later on, Luisa heard Khazi Mae cry and then squeal. Her curiosity aroused, she
crept two steps up the appellant's house, peeped through an opening between the floor and the
door, and saw appellant naked on top of Khazi Mae, his right hand choking the girl's neck. Rebada
became frightened and went back to her house to gather her children. She told her compadre,
Ricardo Lagranai who was in her house at that time, of what she saw. The latter got nervous and
left. That evening when she heard that Khazi Mae's parents were looking for the little child, she
called out from her window and asked appellant what time Khazi Mae left his house. Appellant
replied that he did not know since he was drunk.4 With Luisa Rebada's revelation, appellant was
arrested.
During the investigation conducted by PO3 Danilo Tan, appellant readily admitted raping and killing
Khazi Mae.5 The police were able to recover from appellant's house Khazi Mae's green slippers, a
pair of gold earrings placed on top of a bamboo post, a bloodied buri mat, a pillow with a blood stain
in the middle, and a stained T-shirt owned by appellant.

An autopsy conducted and Dr. Tito Doromal, the medico-legal officer, revealed the following
findings:

BEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infra-
clavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left

chest wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left

iliac crest.

ON OPENING THE SKULL & THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

EXTREMITIES:

1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd,

left forearm.

2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd,

right forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the

rectum.
 b) Hematoma, from the fourchette up to the rectum.

c) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and

anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS.6

Consequently, an information was filed with the Regional Trial Court of Iloilo City, Branch 38,
docketed as Criminal Case No. 43663, charging Arnel Alicando with the crime of rape with homicide,
committed as follows:

That on or about the 12th day of June, 1994 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, did then and there willfully,
unlawfully and feloniously and by means of force, violence and intimidation to wit: by
then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of
age, choking her with his right hand, succeeded in having carnal knowledge with her
and as a result thereof she suffered asphyxia by strangulation, fractured cervical
vertebra and lacerations of the vaginal and rectal openings causing profuse
hemorrhages and other injuries which are necessarily fatal and which were the direct
cause of her death thereafter.

CONTRARY TO LAW.7

On June 28, 1994, appellant, assisted by Atty. Rogelio Antiquiera of the Public Attorney's Office
(PAO), pleaded guilty to the crime charged.

The trial court ordered the prosecution to present evidence to prove the guilt of the accused and the
precise degree of his culpability. It likewise set the case for reception of evidence for the accused, if
he wished to.8

In the course of the trial, the prosecution presented (1) Luisa Rebada; (2) Dr. Tito Doromal, the
medico-legal officer; (3) SPO1 Manuel Artuz, the exhibit custodian of Iloilo City Police Station; (4)
PO3 Danilo Tan; (5) SPO3 Rollie Luz, police investigators; and (6) Romeo Penecilla, the victim's
father.

The defense, for its part, merely presented the autopsy report of Dr. Tito Doromal to show that the
proximate cause of death was asphyxia by strangulation.

On July 20, 1994, the trial judge rendered a decision imposing the death penalty on Arnel Alicando.
The case is now before us on automatic review. Disagreeing with the trial court's conviction of the
accused for the crime of Rape with Homicide and the said court's imposition of the death penalty the
Court's majority has decided to overturn the conviction and remand the case to the trial court on the
basis of the following alleged procedural irregularities:

First, that the arraignment of the appellant is null, and void;

Second, that the plea of guilt made by the appellant is likewise null and void;

Third, some prosecution evidence, offered independently of the plea of guilt of the appellant, were
inadmissible, yet were considered by the trial court in convicting the appellant.

I strongly disagree.

II

THERE WAS SUBSTANTIAL, IF NOT FULL COMPLIANCE WITH EXISTING RULES ON

ARRAIGNMENT AND PLEA.

A thorough review of the record reveals that there was full compliance with existing rules on
arraignment and plea.

It is plainly obvious from an examination of the appropriate rules and the record of the case that: 1)
there is absolutely nothing on the record which would warrant a finding the information was not read
in the language or dialect known to the appellant; 2) the rule on arraignment and plea does not
absolutely require that the same be indicated in the record of every criminal case; 3) Rule 116
Section 1 contains nothing requiring trial courts to indicate in the record the fact that the information
was read in the language or dialect known to the defendant, even if the same was in fact actually
complied with by the lower court.

The rule on arraignment, Rule 116 provides the following:

Sec. 1: Arraignment and plea; how made. — (a) The accused must be arraigned
before the court where the complaint or information has been filed or assigned for
trial. The arraignment must be made in open court by the judge or clerk by furnishing
the accused a copy of the complaint or information with the list of witnesses, reading
the same in the language or dialect known to him and asking him whether he pleads
guilty or not guilty. The prosecution may, however, call at the trial witnesses other
than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his
plea. Both arraignment and plea shall be made of record, but a failure to enter of
record shall not affect the validity of the proceedings.

(c) If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not
guilty shall be entered for him.

xxx xxx xxx

Sec. 3: Plea of guilty to capital offense; reception of evidence. When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
 voluntariness and full comprehension of the consequences of his plea and require
the prosecution to prove his guilt and the precise degree of culpability. the accused
may also present evidence in his behalf.

When an accused is arraigned in connection with a criminal charge, it is the duty of the court to
inform him of its nature and cause so that he may be able to comprehend the charges against him
as well as the circumstances attendant thereto. When the charge is of a serious nature, it becomes
the imperative duty of the lawyer present not only to assist the accused during the reading of the
information but also to explain to him the gravity and consequence of his plea.9

Trial judges are enjoined to refrain from accepting with alacrity the accused's plea of guilty. While
justice demands speedy administration, judges are duty bound to be extra solicitous in seeing to it
that when an accused pleads guilty, he fully understands the meaning of his plea and the import of
an inevitable conviction.10

Consequently, three things need to be accomplished after the accused in a criminal case enters a
plea of guilty to a capital offense:

(1) the court should conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the accused's plea;

(2) the lower court should require the prosecution to prove the guilt of the accused and the precise
degree of his culpability; and

(3) the court should inquire whether or not the accused wishes to present evidence on his behalf and
should allow him to do so if he so desires. A judge who fails to observe this requirement commits a
grave abuse of discretion.

These requirements have been complied with in this case, which the following pertinent portions of
the appellant's arraignment, quoted from the record support:

Prosecutor Edwin Fama —

Appearing as public prosecutor.

Atty. Rogelio Antiquiera —

For the accused, Your Honor. Ready for arraignment.

Interpreter:

(Reading the information to the accused for arraignment and pre-

trial.)

Note:

(After reading the information to the accused, accused pleads guilty.)

Court:
Question of the court to the accused.

Q Considering that this is a crime and under the amended law is a

heinous crime, because of your plea of guilty without the consent or
even against the discretion of the court, the court will give you a
mandatory death penalty because of the crime charged, do you
understand that?

Accused:

Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary will or without
any force or intimidation from any one or whatever.

Accused:

None, Your Honor.

Q Are you sure?

Accused:

Yes, Your Honor.

Q Or maybe because you the were manhandled or maltreated by

anyone and that will just be consideration for you to plead guilty?

Accused:

No, Your Honor.

Court:

Were you not manhandled, please let us see your body?

Note:

(Accused raised his prison uniform or shirt and showed to the court
his body from waist up).

Accused:

No, Your Honor.

Court:

You were not maltreated in the jail?

Accused:
 No, Your Honor.

Court:

Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Accused:

No, Your Honor.

Court:

If you plead guilty to the crime charged there will be some effects on
your civil rights but not until the decision will be affirmed by the
Supreme Court.

Accused:

Yes, Your Honor. 11

Again, before the prosecution presented its evidence on July 11, 1994, the trial judge once more
asked appellant if he was sure of his plea.

Fiscal Fama:

Appearing as the public prosecutor, ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera:

For the accused, Your Honor.

Court:

Before the court will proceed with the reception of evidence by the
prosecution, Arnel Alicando, please come here. (At this juncture,
Arnel Alicando, come near to the court)

The court is warning you again that this is reception of evidence by

the prosecution after you plead guilty to the crime charged at, do you
understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty of your rape
with homicide?

A Yes, Your Honor.

 Q Do you still insist that your plead of guilty is voluntary without force,
intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist of your plea of guilty?

A Yes, Your Honor.

Court:

Okey, proceed. 12

It is crystal clear, from the above-quoted portions of the transcript of the appellant's arraignment that
the trial judge made every effort to ascertain the voluntariness of the plea, and that he repeatedly
warned the defendant of the consequences of his plea. In other words —

A) The above-quoted proceedings satisfy the requirement of a searching inquiry.

There is no hard and fast rule requiring judges to conduct their searching inquiry in the detailed
manner suggested by the majority opinion, although judges should ideally strive to conduct as
detailed an inquiry as would be reasonable under the circumstances. In People v. Dayot13 we held
that:

A searching inquiry . . . compels the judge to content himself reasonably that the
accused has not been coerced or placed under a state
of duress — and that his guilty plea has not therefore been given improvidently —
other by actual threats of physical harm from malevolent quarters or simply because
of his, the judge's, intimidating robes.

xxx xxx xxx

While there can be no hard and fast rule as to how a judge may conduct searching
inquiry, as to the number and character of questions he may put to the accused, or
as to the earnestness with which he may conduct it, since each case must be
measured according to its individual merit, taking into consideration the age,
educational attainment, and social status of the accused confessing guilt, among
other things, the singular barometer is that the judge must in all cases, fully convince
himself that: (1) the accused, in pleading guilty, is doing so voluntarily, and (2) he, in
so doing, is truly guilty, and that there exists a rational basis for a finding of guilt,
based on his testimony. This Court leaves to judges, considering their training, ample
discretion, but expects them at the same time, that they will be true to their calling
and be worthy ministers of the law.

The purpose of a searching inquiry is to satisfy the judge that the defendant's plea was entered into
voluntarily and that the defendant understood the consequences of his plea. There is no hard and
fast rule, as the Dayot case states, as to the number and character of the questions propounded.
Judges are not required to go into obsessive detail about the psychological, educational and
sociological background of the accused if from a reasonable inquiry conducted through a reasonable
number of questions he is fully convinced a searching inquiry has been met. There is a world of
difference between a fastidious attention to detail which furthers the end of justice and an attention
to detail and minutae bordering on obsessiveness which ultimately obstructs justice and defeats the
purpose of the law. Apropos to this there is —

B) No evidence that the information was not read in a language or dialect known to the
appellant.

The records in an overwhelming number of criminal cases brought before us contain informations
written in the English language without any indication, whatsoever, that the same was translated
from a language or dialect known to the defendant. And yet, even in Metro Manila alone, one
observes that the bulk of proceedings in our trial courts, including the process of arraignment, is
conducted in the vernacular. On the record of these cases normally printed in English, courts hardly
bother to point out those sections of the trial conducted in the vernacular and translated into English.
Because of this widespread practice, which the section on arraignment in the Rules of Court does
not proscribe — the presumption of regularity ought to apply. Otherwise, we should compel
ourselves to review the criminal cases decided by this Court since the imposition of the 1985
Revised Rules on Criminal Procedure and see whether there was any indication that the
arraignment of these criminal cases were, the records therein then ought to show, conducted in a
language known to the defendants. The absurdity of this argument by the defense then becomes
apparent, because it would be fairly obvious to all of us that most of these proceedings were actually
conducted in the vernacular, but the fact was never put on record. In fact, Section 1 (b) of Rule 116
even states that while the arraignment and plea be made of record failure to enter (the same) of
record shall not affect the validity of the proceedings. Even the rule on placing the arraignment and
plea on record is not absolute, and I cannot see how we can be too strict about indicating on record
whether proceedings were made in the vernacular in cases where in fact the proceedings were so
conducted. The argument that the information was not read in the language or dialect known to
appellant merely grasps on straws and ought to be dismissed for being so inconsequential as to be
bereft of merit.

Moreover, it is a matter of common practice that in every court, especially in the provinces, an
interpreter is always at hand to translate to the parties all questions propounded to them in the
language or dialect known to them. It is also common practice that the transcript of stenographic
notes submitted to the court only reflect the court proceedings conducted in the English language.
While again, the records do not categorically indicate that the information was read in the language
or dialect known to the defendant or that the questions asked were mandated in the vernacular or
dialect understood by him it is presumed, as we have actually done in many cases before this, that
such duty was regularly performed in the absence of any evidence to the contrary.14 In the face of
this common practice, the burden now lies on the defense to prove the contrary. Under the principle
of equal application of laws, we cannot have varying degrees of fastidiousness in the enforcement of
procedural rules based on the gravity of the penalty.

THE PLEA OF GUILTY IN THE CASE AT BENCH WAS CLEARLY NOT IMPROVIDENT

In the case before us, when the appellant pleaded guilty in open court on June 28, 1994, appellant
was clearly assisted by counsel. The court took pains to repeatedly remind him of the grave
consequences of a plea of guilty, which appellant said he understood. One very such occasion, he
had every opportunity, through his counsel, to ask the court for clarification.
The trial court, on its own, in fact went out of its way to repeatedly inform the defendant of the nature
of his plea and the implications of the plea he was making. On July 11, 1994, before the presentation
of evidence for the prosecution, he was once again asked by the court if he was sure of his plea. At
this time, appellant had more than sufficient time or about thirteen days to reflect on all the possible
consequences of his plea. If indeed it was not voluntarily made during his arraignment, he had
enough time and opportunity with the assistance of his lawyer to recant or at least express
reservations about the same. However, in spite of several warnings given by the trial court on
different occasions, appellant stood pat with his judicial admission.

Significantly, the records fail to indicate that appellant questioned his plea of guilty at any stage of
the trial. He had the opportunity to cross-examine the witnesses for the prosecution. He did not put
up any defense nor denied the inculpatory testimonies, documents and real evidence presented
against him (in fact, it was appellant himself who directed the police investigators to the location of
the various physical evidence, e.g. green slippers, earrings15).

Appellant's silence as to the accusations made against him in open court from the time of his
arraignment and during his entire trial therefore assumes a great deal of significance in the context
of the majority's insistence that herein appellant's plea of guilty was improvident and therefore void.
In the face of the seriousness of the accusations against him, his reticence was eloquent. As the
Court held in People vs. Pillones:

Silence is assent as well as consent, and may, where a direct and specific
accusation of crime is made, be regarded under some circumstances as a quasi-
confession. An innocent person will at once naturally and emphatically repel an
accusation of crime, as a matter of self-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. (Underhill's
Criminal Evidence, 4th Ed., p. 401.)16

The absence of an extrajudicial confession does not detract from the efficacy or validity of
appellant's plea of guilty, it does not affect the requirement compelling the prosecution to prove the
guilt of the accused and the precise degree of his culpability. No where in the rules does it state that
an extrajudicial confession is a prerequisite for a conviction based on a plea of guilty. While the
constitutional infirmities that attended the custodial investigation of the appellant were serious and
should not be glossed over, his conviction was based mainly on his plea of guilt made in open court
and not on the extrajudicial confession, which formed but a small aspect of the prosecution's case.
An extrajudicial confession only serves to confirm or substantiate a plea of guilty entered in open
court. As between an extrajudicial confession and a judicial admission, the latter significantly is given
evidentiary weight. Even assuming the extrajudicial confession in this case could not be given
evidentiary weight because of mistakes committed by authorities in conducting their custodial
investigation and in their gathering evidence, his plea of guilty on arraignment, his repeated
admissions to the same in spite of repeated warnings of the trial judge of the consequences of his
plea and the presence of ample corroborating testimony from a credible eyewitness to the crime
establish appellant's guilt beyond reasonable doubt.

The essence of the plea of guilty in a trial is that the accused admits his guilt freely, voluntarily and
with full knowledge of the consequences and meaning of his act, and with a clear understanding of
the precise nature of the crime charged in the complaint or information.17 A plea of guilty, when
formally entered on arraignment is sufficient to sustain a conviction charged in the information
without need of further proof.18 This, notwithstanding, (in line with the pronouncement of the Court in
several cases19) the trial court received evidence to determine if the appellant erred in admitting his
guilt. Independent of such plea, there was more than sufficient evidence adduced to prove that
appellant indeed committed the acts charged.

THE PHYSICAL EVIDENCE OBJECTED TO FALLS UNDER ONE OF THE EXCEPTIONS

TO THE EXCLUSIONARY RULE

Objections were vigorously raised by the defense regarding certain pieces of evidence obtained by
law enforcement authorities following the uncounseled custodial investigation of the accused in the
case at bench. These objections have been thoroughly threshed out and weighed against the other
factual material obtained at trial in order to determine whether or not, on the balance, the accused's
conviction ought to be sustained, modified in favor of a lesser penalty, or altogether thrown out. I
shall discuss them in the interest of thoroughness.

Central to these objections were the pieces of physical evidence allegedly obtained by law
enforcement officers as a result of information volunteered by the accused during his uncounseled
custodial investigation. Since the information obtained, it has been pointed out, was taken
supposedly in violation of the Constitution, the pieces of evidence derivatively gathered should have
been excluded by the court below, following the fruit of the poisonous tree doctrine.

The 1987 Constitution's exclusionary rules absolutely forbid evidence obtained from illegal searches
and seizures or evidence resulting from uncounseled custodial investigations of accused individuals.
The fruit of the poisonous tree doctrine extends these prohibitions to pieces of evidence derivatively
flowing from illegal searches and seizures or from admissions made by accused individuals under
conditions proscribed by the Constitution. However, the doctrine is not without its exceptions, and
the evidence in dispute in the instant case falls within those exceptions.

The discovery of the victim's body near the house of the accused would have naturally led law
enforcement authorities to undertake a more thorough investigation of the site, particularly in those
areas where the victim was last seen. Assuming local police had enough logistical capabilities to
form two teams to undertake two separate searches, one for physical evidence and other clues and
one for the possible suspects, the evidence objected to would have been inevitably discovered with
a thorough search of the site. Under the circumstances of this case where only one search was
initially conducted (obviously because of logistical reasons), primarily for a suspect, it would have
logically followed had a suspect not been found at the time, or, had the accused not made his
voluntary, though uncounselled confession, that a search for evidence would have been undertaken,
under conditions which would have validated a warrantless search, where the same physical
evidence would have been inevitably discovered. In other words, with or without appellant's
volunteered information, the pieces of evidence objected to — the blood-stained pillow, the T-shirt
and the victim's earring — would have fallen into police hands by legal means which would have
normally been undertaken by the authorities in any case.

Courts have generally approved the view that it is not necessary to hold that all evidence is fruit of
the poisonous tree. Under one of the recognized exceptions, the more appropriate question in such
cases is whether the evidence to which the objection is made would not have been discovered at all
but for the illegality or would have been discovered anyway by sources or procedures independent
of the illegality. Another exception refuses to treat the doctrine as absolutely sacred if the evidence
in question would have been inevitably discovered under normal conditions.

I submit, that under the peculiar circumstances of this case, the evidence objected to would have
been inevitably discovered anyway. In a long line of cases, courts have recognized that evidence
derived from information obtained illegally is not absolutely inadmissible under the fruit of the
poisonous tree doctrine where it is shown that such evidence would have been inevitably gained
even without the unlawful act.20 The case of U.S. vs. Seohnlein, for instance, held the view that a
confession by the accused in a bank robbery case was not fruit of the poisonous tree for the reason
that the information which led to his confession, though the product of an illegal search would have
been discovered in the absence of such illegality.21 The Court in Lockridge vs. Superior Court was of
the opinion that where a witness is discovered as a result of illegal police conduct, his testimony is
admissible is he would have been discovered in the normal course of a normally conducted
investigation. 22 These and other recognized limitations to the fruit of the poisonous tree doctrine do
not have the effect of diluting the effect of our exclusionary rules. Rather, they serve the purpose of
the rule well by maintaining a reasonable balance between the need to deny evidence come by
through the exploitation of an illegality on one hand and the need to minimize opportunity for the
defendant in a criminal case to reap an undeserved and socially undesirable bonanza.23 Certainly it
could not be argued that with nothing in their hands, the police would not have gone back to the site
for a better inspection.

THERE IS ENOUGH LEGAL EVIDENCE TO SUSTAIN THE TRIAL COURT'S CONVICTION

OF THE ACCUSED WITH MORAL CERTAINTY

Assuming arguendo the validity of the defense's arguments over the pieces of evidence recovered
by the police in the case at bench above-mentioned, a thorough review of the evidence utilized by
the trial court leads us to the conclusion that the defendant's conviction would have been sustained,
in any case, without the pieces of evidence objected to.24 Lest we mistake the trees for the forest, a
shifting of the pieces of evidence, and a separation therefrom of the physical evidence objected to
would nevertheless still leave the prosecution with enough legal evidence to convict the accused
with moral certainty. These include:

1. The defendant's own repeated admissions, in the presence of counsel and in open court that he
committed the acts charged;

2. The essentially uncontradicted testimony of the prosecution's eyewitness, Luisa Rebada.

Having discussed the first point, I shall go directly to Rebada's testimony, which the majority opinion
let pass without comment. For a better perspective of Rebada's testimony, allow me once again to
quote from the transcript:

Q Can you recall where were you on June 12, 1994, at around 5:30
P.M.?

A Yes, Sir.

Q Where were you?

A I was at home.

Q Where is your house situated?

A Brgy. Rizal, Pala-pala, Zone I, Iloilo City.

Q Do you have any neighbor in that residence of yours at Rizal Pala-

pala?

A Yes, Sir, Arnel Alicando.

Q How far is the house of Arnel Alicando from your house?

A One and a half (1 1/2) arm's length.

Q On that time at 5:30 P.M. have you seen Arnel Alicando?

A Yes, Sir.

Q Where was Arnel Alicando at that time?

A He was upstairs, inside the house of Romeo Alicando.

Q What is the relation of Romeo Alicando to Arnel Alicando if you

know?

A Romeo is the uncle of Arnel.

Q Did Arnel Alicando have any companion while he was in the house
of his uncle, Romeo Alicando?

A Khazie Mae was his companion.

Q You are referring to Khazie Mae Penecilla, the victim in this case?

A Yes, Sir.

Q Aside from them, the two of them, Arnel Alicando and Khazie Mae
Penecilla, are there any person inside the house of Romeo Alicando
at that time?

A No more, only the two of them.

Q Now, at that precise time at 5:30 of June 12, 1994, what have you
observed if you observed any in the house of Romeo Alicando
wherein Arnel Alicando and Khazie Mae Penecilla was at that time?

A I saw the child looking out in the window and I invited her for a
yemas candy, and Arnel Alicando suddenly closed the window.

Q When Arnel Alicando you said closed the window, what did you
observe after that if there is any?

A The child cried.

Q You are referring to the victim, Khazie Mae Penecilla when you
said the child was crying?

A Yes, Sir.
Q And after that, after the child was crying, what have you observed
at that time?

A And then she squealed.

Q After that, what did you do after hearing that and she, the child
squealed, what did you do if there was any?

A So, I went down from the house to the house of Romeo Alicando,
where I saw between an opening between the two slots. I went up
two steps.

Q And then what did you do?

A And so, I peeped between the floor and the door because there
was an opening.

Q Have you seen anything inside that house?

A Yes, Sir.

Q What have you seen if there is any?

A I saw Arnel Alicando who was naked/nude at that time lying on top
of the child wherein his left hand was holding the neck of the child.

Q When you said child, you are referring to the victim, Khazie Mae
Penecilla?

A Yes, Sir.

Q What did you do after seeing that?

A Because I was afraid at that time and I got nervous, so I went down
from that house and went to my own house and gathered my . . . . . . .

Q When you went to your house, was there any person inside your
house?

A My friend.

Q Who is the name of your friend?

A Ricardo Lagrana (Compare).

Q Have you talked to our compare, Ricardo Lagrana who was in your
house? Have you told about the incident that you have seen in the
house of Romeo Alicando wherein Arnel Alicando was at the top of
the victim, Khazie Mae Penecilla, without clothes at all?
A Yes, Sir.

Q What action did your compare do if there was any?

A When I told the incident to my compare he also felt nervous and he

went home.

Q How about on the same day of June 12, 1994, at around 6:00 P.M.,
where were you?

A I was inside the house.

Q And you have observed what is happening in your barangay at that

time?

A Yes, Sir.

Q What have you observed?

A The parents of Khazie Mae Penecilla were looking for her.

Q When you have observed, have you known that the parents of
Khazie Mae Penecilla were looking for her, it did not occur to your
mind to report the incident to the parents of Khazie Mae Penecilla on
what you have seen at that time?

A I did not go out of the house because I was afraid of Arnel

Alicando.

Q Have you seen on the same day after that incident of 5:30 in the
evening, have you seen again Arnel Alicando?

A Yes, Sir.

Q Where?

A I saw Arnel Alicando inside the house going around.

Q Did you talk to him?

A One June 12, 1994, at 10:45 in the evening, I told Arnel Alicando
and asked him, what time did the child go down from the house.

Q Where were you at that time when you asked Arnel Alicando?

A I was inside my house.

Q Because you are very near neighbor to each other?

A Yes, Sir.
 Q And it is one and a half (1 1/2) arm's length your house from Arnel
Alicando's house?

A Yes, Sir.

Q Did Arnel Alicando answer you?

A He answered, I do not know because I was drank at that time.

Q How about one June 13, 1994 in the morning at around 8:00
o'clock, what did you observe in your barangay?

A None.

Q You have not observed anything?

A None.

Q Do you know when the parents of the victim, Khazie Mae Penecilla
found their daughter?

A Khazie Mae Penecilla was found at around 8:00 A.M.

Q Of what day?

A June 13, 1994.

Q Why do you know that this Khazie Mae Penecilla was only found
by their parents?

A Because Leopoldo (Torong) Santiago, when he went down from

their house and answered the call of nature, he found the child under
their house. 25

It is well-settled in this jurisdiction that the testimony of a lone witness, free from signs of impropriety
or falsehood, is sufficient to convict an accused even if uncorroborated. In this case, Rebada's
testimony was positive and straightforward. I see no reason why the same should not be given the
credence and the weight that it deserves, without our ignoring established principles in the law on
evidence. Such factual findings of the trial court on the issue of credibility of a witness are accorded
great weight and respect on appeal, as it should have been in the instant case, because the trial
court had the every available opportunity to observe the demeanor of the lone witness during the
trial. Her belated reporting of the incident the next morning, to which the defense urged the lower
court to accord great weight, is hardly out of the ordinary.

Individual reactions are motivated by varied and varying environmental factors. There is no standard
norm of human behavioral response when one is confronted with a strange, startling or frightful
experience.26 Fear and self preservation are strong motivating factors. It is common for people to
choose not to get involved when a crime is committed, otherwise there should only be a few
unsolved crimes.27 Rebada, in this case, was obviously terrified with what she saw. Self-preservation
and fear of possible reprisals from the appellant would have initially overwhelmed any desire on her
part to reveal what she had seen during the incident. She tried her best to remain as calm and
casual as possible, and pretend that she did not see anything the instant she saw Alicando, when
she asked appellant what time Khazi Mae got down from his house following the incident.28 Given
these factors, it would have been too much to expect Rebada in her mixed state of dread, fear,
revulsion and instinctive self-preservation to harness superhuman reserves of courage to stop
appellant when she saw him
in that compromising position. Man's actions and reactions cannot be stereotyped.29 Some
individuals flee from an adverse stimulus, others confront it. Upon seeing the dead girl's distraught
parents, and overcoming her fear with some prodding from her husband, Luisa Rebada was finally
driven by conscience to reveal what she knew the following morning.

The minor inconsistencies in Rebada's testimony are understandable under these circumstances.
However, it should be stressed here that the trial court's conclusions were founded principally on the
direct, positive and categorical assertions made by Rebada as regards material events in the crime.
It is worthy to stress, moreover, that Rebada never wavered in her oral testimony even on intense
cross-examination from the defense. In her affidavit, she declared that she saw Khazi Mae at
appellant's house; that appellant closed the window; and after hearing the child's cry and squeal,
peeped into the opening and saw appellant on top of the victim. These were the very same
declarations she made when she took the witness stand. While she may have wavered on a minor
detail (as to whether it was the right or the left hand of the appellant which was used in choking the
victim) these should not be sufficient to debunk her credibility. 30 She had no reason to falsely testify
against the appellant and there were no possible motives alleged for her to do so. She is not in any
way related to the Penecillas, and there was no evidence adduced to show that she harbored any ill-
feelings towards the appellant. In a sense, her credibility is even enhanced by the absence any
improper motive.31

Together with the direct testimony of the eyewitness, Rebada, there is, I repeat, sufficient evidence
corroborating and unmistakably pointing to the appellant as the author of the crime. Khazi Mae was
last seen in the company of the appellant. Rebada testified that she saw appellant naked on top of
Khazi Mae. Recovered from the latter's house were Khazi Mae's green slippers, pair of gold
earrings, her dress, bloodied buri mat and pillow. The fact of shoddy police work in the recovery of
these pieces of evidence does not escape us. But whether on not these pieces should have been
admissible is on hindsight hardly relevant in the face of ample legally admissible evidence justifying
the trial court's guilty verdict.

As a last resort, appellant would want to drive home the point that rape was not committed. He
argues that 1) while Rebada saw him on top of Khazi Mae, she did not see him in a push and pull
movement 2) the requested NBI report on the examination of Khazi Mae's underwear to show the
presence or absence of the male semen was not presented; and 3) the autopsy report revealed that
the proximate cause of death was asphyxiation by strangulation.

In the first place, witness PO3 Danilo Tan testified that when he arrived at the Pencilla's house to
take a look at the dead body, he looked at Khazi Mae's underwear and saw that it was bloodied. The
underwear was sent to the NBI Laboratory for examination. Considering, however, the inadequate
facilities of the NBI Laboratory at Iloilo, the underwear was referred to Manila for examination. Since
it will take time for the court to wait for the results from Manila, the trial court dispensed with it as this
would only serve as corroborating evidence to the fact of rape.32

Moreover, rape is committed whenever there is penetration, no matter how slight into the genital
organ of the victim.33 The vaginal and anal findings of Dr. Tito Doromal revealed that the lacerated
wound from the fourchette up to the dome of the rectum was caused by a forcible entry of an object.
In view of settled jurisprudence to the effect that rape is committed by the mere touching of the male
genital organ on the vagina, it hardly is relevant whether or not semen or sperm are present or
absent. Absence of emission does not negate rape. Rebada's testimony that she saw appellant
naked on top of the victim when she peeped through an opening between the floor and the door of
appellant's house and the autopsy report revealing the laceration of the vagina eloquently testify to
the crime committed and its authorship in the case at bench. As correctly observed by the Solicitor
General, the corpus delicti was there for all to see. The trial court, therefore, did not err in dispensing
with the results of the NBI laboratory examination of Khazi Mae's underwear to determine the
presence of male semen, a fact of little relevance after the rape was established by definitive legal
evidence.

Finally, notwithstanding the fact that the proximate cause of death was asphyxiation by
strangulation, it cannot be denied that Khazi Mae was raped and killed on the same occasion. As we
observed in People v. Yu,34 unity of thought and action in the criminal purpose of the accused cannot
be altered by the circumstances that both the crime of rape and the crime of murder resulted. The
accused had to choke and strangle the girl at the same time that he was satisfying his lust on her.35

Based on all of the foregoing, it is clear and inescapable that appellant committed the heinous crime
or Rape with Homicide under Sec. 11 of R.A. 7659 which provides:

Art. 335 of the same Code is hereby amended to read as follows:

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

xxx xxx xxx

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 circumstances:

xxx xxx xxx

(4) When the victim is a religious or a child below seven (7) years old.

xxx xxx xxx

Having thoroughly evaluated the evidence utilized by the trial court in convicting the accused with
the crime of subject to our automatic review, it is painfully clear — even to those who have
reservations about imposing the death penalty among us — that we have reached the point of moral
certainty necessary to the imposition of the supreme punishment of death in this case.

Convictions for the crime of rape have been sustained by this Court in an overwhelming number of
cases on uncorroborated evidence given almost exclusively by the complainant alone. Against this
backdrop (of most cases of rape where reliance is placed solely on the victims allegations) the trial
Court in the case at bench, arrived at its conclusions principally on the basis of two key pieces of
testimonial evidence: 1) the accused's admission of guilt in not one but two occasions in open court
(in the presence of his lawyer) even after being warned on both occasions by the judge of all the
possible consequences of his admission the accused's admission of guilt; and 2) the essentially
uncontradicted testimony of an eyewitness to the crime itself. Even with the relatively minor
inconsistencies of the latter's testimony — which the defense spiritedly tried to magnify — the net
effect of the same was to enhance, not diminish, the testimony of the lone eyewitness because
minor incongruencies are on the whole indicative of honest and unrehearsed declarations and often
amplify the credibility of such declarations. 36 Ordinarily, as stated earlier, convictions for rape have
been obtained on the basis far less evidence. Parenthetically, either one of these testimonies,
standing alone, would have been adequate to obtain the accused's conviction.

In fine, let me reiterate my position in People vs. Veneracion, that the reimposition of the death
penalty for specific offenses under Republic Act 7659 has left our courts with no choice but to
impose the penalty for crimes clearly enumerated in the said law. If a court, after leaving no stone
unturned, finds it necessary to impose the penalty, I believe that it does not do so as an infallible
God exercising a divine right to give or take away human life, but as a fallible human institution
recognizing the importance of according majesty to laws so indispensable to maintaining social
order. In the instant case, after a thorough and searching review of the evidence and an evaluation
of the procedural and constitutional objections adduced either in support of an acquittal or of
imposing a less severe penalty it should be fairly obvious to us that the trial court committed no error
in finding the accused guilty as charged. Recognizing our fallible nature, the quantum of evidence
necessary to convict has never been absolute proof beyond any doubt but merely proof beyond
reasonable doubt. The death penalty in the instant case was clearly imposed in conformity with the
mandate of law and the Constitution.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 125812 November 28, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO PARUNGAO, accused-appellant.

MELO, J.:

On May 30, 1989, early in the morning, the detention prisoners in Cells No. 2 and 6 of the
Pampanga Provincial Jail at the Provincial Capitol in San Fernando, staged a jailbreak. On the
occasion thereof, Jail Guards Conrado Basa and Emilardo Valencia were killed, while Jail Guard
Arnel Aldana was seriously wounded. Several pieces of firearms valued at P41,000.00 were also
forcibly taken and carried away from the Provincial Jail Armory.

The incident triggered the filing on April 16, 1990, of an Information against herein accused-appellant
Abelardo Parungao and 15 other prisoners charging them with the crime of Robbery with Homicide
and Serious Physical Injuries, thusly:

That on or about the 30th day of May, 1989 inside the Pampanga Provincial Jail at
Provincial Capitol, municipality of San Fernando, province of Pampanga, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused who
are cell-mates at Cell No. 6, with evident premeditation and taking advantage of their
superior strength, and with intent to escape from their detention cell, by conspiring,
confederating and mutually helping one another, with intent of gain, and by means of
force, violence and intimidation, did then and there wilfully, unlawfully and feloniously
attack, assault and employ personal violence upon Conrado Basa, Emilardo Valencia
and Arnel Aldana who are all Provincial Jail Guards and while engaged in the
performance and discharge of their official duties as such, by beating and striking
them repeatedly with pieces of wood (bamboo stick) on the different parts of their
bodies, thereby inflicting upon Conrado Basa and Emilardo Valencia serious and
fatal injuries which cause their death thereafter, and serious physical injuries upon
Arnel Aldana, and on the same occasion thereof and thereafter, did then and there
take, steal and carry away with them the following properties, to wit :

1. One (1) shotgun 12 gauge — SN957475 — P8,500.00

2. One (1) shotgun 12 gauge — SN974412 — 8,500.00

3. One (1) shotgun 12 gauge — SN974105 — 8,500.00

 4. One (1) Ruby cal. 22 — SN613085 — 5,200.00

5. One (1) Ruby cal. 22 — SN637171 — 5,200.00

6. One (1) Ruby cal. 22 (high std) SN1166602 — 5,200.00.

belonging to the armory of the Provincial Jail valued at FORTY ONE THOUSAND
ONE HUNDRED PESOS (P41,100.00), Philippine Currency, to the damage and
prejudice of the said owner in the total amount of P41,100.00, Philippine Currency.

All contrary to law.

San Fernando, Pampanga, April 16, 1990.

(pp. 37-38, Rollo.)

In an earlier and a separate trial, the court below, handed down a decision dated October 4, 1990,
convicting four of the accused, namely, Romeo Pamintuan, Edgar Pabalan, Mario Briones, and
Ronnie Pilapil, while two, Gerardo Javier and Vivencio Feliciano, were acquitted. The judgment of
conviction was later affirmed by this Court in a decision dated May 28, 1993 (People vs. Pamintuan,
222 SCRA 716 [1993]).

Herein accused-appellant Parungao who was arraigned only on January 14, 1990, was tried
separately and thereafter convicted by the Regional Trial Court of the Third Judicial Region (Branch
42, San Fernando, Pampanga) on March 18, 1991. The instant appeal is thus with reference only to
accused-appellant Parungao.

The evidence of the prosecution tends to show the following incidents:

At about 7 P.M. on May 29, 1989, Mario Quito, a detention prisoner in Cell No. 2 of the Provincial
Jail of San Fernando, Pampanga, was asked by his cell mates Jun Solis and Edgar Pabalan, if he
wanted to join them in a jailbreak and escape, to which Quito answered "Bahala na." Solis and
Pabalan told Quito there is no problem because many prisoners were joining, adding that herein
accused-appellant Parungao was the mastermind. Sometime thereafter, Ramon Sevilla, a detainee
and trustee, come and handed a letter to Pabalan. Quito read the letter which allegedly instructed
Pabalan and Solis to tie Jail Guard Basa and to put off the main switch.

Early the following morning, at about 1 o'clock, prisoner Sevilla came and opened the gate of Cell
No. 2, and the prisoners therein, including Quito, went out.

While Quito was in the jail yard, he saw accused-appellant Parungao near the gate of Cell No. 1
shouting out to Sevilla to open also their Cell No. 1. Sevilla opened the gate of Cell No. 1 but
accused-appellant Parungao and his cell mates Feliciano and Javier did not go out of their cell.

In the meantime, the prisoners from Cells No. 2 and 6, ran out and on their way out, they passed by
Jail Guards Basa, Valencia, Aldana, and Pacheco, in their respective gates, all sleeping. To insure
their escape, the escapees tied the guards, beat them with bamboo sticks, and/or stabbed them with
knives. Basa and Valencia were killed; Aldana was seriously wounded, but Pacheco was unharmed.
As the prisoners were beating up the jail guards, accused-appellant who remained in his cell was
heard by Pacheco shouting to Briones words which were ungrammatically translated during the trial
as: "Alright, go ahead and kill those son of a bitch" (tsn, March 4, 1991, p. 5).

Later, an investigation by the Integrated National Police (INP) of San Fernando, Pampanga, showed
that 6 firearms were missing from the prison armory.

Accused-appellant puts up the defense of denial. According to him, during the jailbreak, he was
inside Cell No. 1 together with the rest of his cell mates, including Luisito Tolentino, Vivencio
Feliciano, and a certain Lapid. There was a brownout and he lay on the floor as gunshots were fired.
He claims he had nothing to do with the jailbreak and was implicated because the prosecution
witnesses, who were prisoners and jail guards, took offense against him because he had reported
them for drug trafficking inside the jail.

Persuaded by the prosecution's evidence, the trial court rendered its decision on March 18, 1991,
the decretal portion of which reads:

WHEREFORE, the Court finds accused Abelardo Parungao y Gatus guilty and
hereby sentences him to suffer the penalty of life imprisonment and to pay solidarily
(alongside with Romeo Pamintuan y Bautista, Edgar Pabalan y Benamira, Ronnie
Pilapil y Esaya and Mario Briones y Guinto) the following:

1. The heirs of the late Emilardo Valencia the total sum of P180,000.00, broken down
as follows: P50,000.00 for the death of Emilardo Valencia, P10,000.00 for
funeral/burial expenses; P100,000.00 for loss of earning capacity; P20,000.00 as
moral damages;

2. The heirs of the late Conrado Basa the total sum of P182,000.00 broken down as
follows: P50,000.00 for the death of Conrado Basa; P12,000.00 for funeral/burial
expenses; P100,000.00 for loss of earning capacity; P20,000.00 as moral damages;

3. Arnel Aldana the amount of P800.00;

4. Provincial Jail of San Fernando, Pampanga the amount of P41,100.00.

SO ORDERED.

(p. 43, Rollo.)

Accused-appellant anchors his appeal on what he considers to be reversible error on the part of the
trial court in accepting and giving full probative value to the hearsay and uncorroborated testimony of
the prosecution witnesses and on the basis thereof, in finding him a co-conspirator and a principal by
inducement.

The principal query posed, therefore, in the instant appeal is whether or not accused-appellant is a
co-conspirator and principal by inducement.

The prosecution presented four witnesses — Mario Quito, Ronnie Pilapil, Arnel Aldana, and
Fernando Pacheco to establish the existence of conspiracy and that accused-appellant was a co-
conspirator and a principal by inducement in the commission of the crime charged.
Mario Quito, a prisoner in Cell 2 testified that his cell mates Jun Solis and Edgar Pabalan told him
that the mastermind of the jailbreak was accused-appellant, based on a letter of Romon Sevilla to
Pabalan and Solis. Unfortunately, this letter was not presented as evidence.

Ronnie Pilapil, also a detainee at the Pampanga Provincial Jail, declared that Mario Briones and
Mario Quito told him that Parungao had asked them to join in the jailbreak.

Arnel Aldana, a jail guard testified that he was told by Mario Quito, Romeo Pamintuan, and Ronnie
Pilapil that accused-appellant Parungao was the mastermind of the jailbreak.

Pacheco, a jail guard trainee declared that he heard accused-appellant Parungao ask Briones to
open Cell No. 1, shouting in the process, "Alright go ahead and kill those son of a bitch."

Plainly the foregoing testimony of Quito, Pilapil, and Aldana that accused-appellant was the
mastermind of the jail break is not sufficient to prove such fact, such evidence being merely hearsay
because said witnesses testified and conveyed to the court matters not of their own personal
knowledge but matters only narrated to them by other detainees. There is nothing in their testimony
pointing to accused-appellant as the very source of their information that he planned the jailbreak.
However, it must be noted that neither accused-appellant nor his counsel objected to the admission
of the testimony of Quito, Pilapil, and Aldana.

The general rule is that hearsay evidence is not admissible. However, the lock of objection to
hearsay testimony may result in its being admitted as evidence. But one should not be misled into
thinking that such declarations are thereby impressed with probative value. Admissibility of evidence
should not be equated with weight of evidence. Hearsay evidence whether objected to or not can not
be given credence for it has no probative value.

We have consistently held that:

The failure of the defense counsel to object to the presentation of incompetent

evidence, like hearsay evidence or evidence that violates the rule of res inter alios
acta, or his failure to ask for the striking out of the same does not give such evidence
any probative value. The lack of objection may make any incompetent evidence
admissible. But admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no probative value
(People vs. Valero, 112 SCRA 661 [1982]; Reiterated in People vs. Nebreja, 203
SCRA 45 [1991]; People vs. Damaso, 212 SCRA 547 [1992]; Baguio vs. Court of
Appeals, 226 SCRA 366 [1993]; People vs. Cabintoy, 247 SCRA 442 [1995]).

To give weight to the hearsay testimony of Quito, Pilapil, and Aldana, and to make the same the
basis for finding accused-appellant a co-conspirator and for imposing the penalty of life
imprisonment, gravely violates the hearsay rule and the constitutional right of the accused-appellant
to meet the witnesses face-to-face and to subject the source of the information to the rigid test of
cross-examination, the only effective means to test their truthfulness, memory, and intelligence. In
case of conflict between a provision of the Constitution giving the accused a substantive right and
mere technical rules of evidence, we have no choice but to give effect to the Constitution (People vs.
Valero, supra).

Obviously, the trial court gravely erred in accepting, and worse still, in giving weight to the hearsay
testimony of Quito, Pilapil, and Aldana, that accused appellant masterminded the jailbreak, and was
a co-conspirator. Too, it defies logic to say that accused-appellant is the mastermind of the jailbreak,
giving written instructions even, but in the same breath say that he did not in fact join the jailbreak
and sat meekly inside his detention cell.

Again, we can not agree with the trial court that accused-appellant is guilty as principal by
inducement simply because as testified by Jail Guard Pacheco, he shouted out words of
encouragement to Briones. Accused-appellant's remarks or utterances did not make him a principal
by inducement.

This Court has held that for utterances of an accused to make him a principal by inducement, the
same must be of such a nature and uttered in such a manner as to become the determining cause of
the crime to serve such purpose, and that such inducement was uttered with the intention of
producing the result (People vs. Caimbre, et al., G.R. No. L-12087, Dec. 29, 1960, People vs.
Castillo, 17 SCRA 721 [1966]; People vs. Canial, 46 SCRA 634 [1972]).

In other words, the inciting words must have great dominance and influence over the person who
acts; they ought to be direct and as efficacious, or powerful as physical or morel coercion or violence
itself. Thus, where the alleged inducement to commit the crime was no longer necessary to incite the
assailant, the utterer can not be held accountable for the crime as a principal by inducement (People
vs. Canial, 46 SCRA 634, [1972]); People vs. Indanan, 24 Phil. 203).

In the case at bar, considering that the accused-appellant uttered the words only after the prisoners
who had escaped had already beaten up and killed jail guards Basa and Valencia and seriously
injured Aldana, accused-appellant's statement cannot be taken as an order to kill. It taxes the
imagination how the ungrammatically translated declaration imputed to accused-appellant could
become the moving cause without which the jailbreakers would not have killed or harmed the
victims. The jailbreakers had already killed the guards and needed no prodding or instigation from
anybody to kill. It appears, therefore, that the alleged proddings and urgings were no longer
necessary to induce the assailants to commit the crime.

Conspiracy has not been established beyond reasonable doubt. It is a rule that although there is no
direct evidence of prior agreement to commit the crime, conspiracy may be inferred from the acts of
the accused before, during, and after the crime which are indicative of a joint purpose, concerted
action, and concurrence of sentiments (People vs. de Leon, et al., 245 SCRA 538 [1995]).

The record is bereft of any evidence indicating a prior plan or agreement between accused-appellant
and the other inmates in the implementation of a common design to bolt jail, kill the guards, and rob
the prison armory. There is no evidence that accused-appellant participated in the killing of the two
guards, Basa and Valencia, nor in inflicting injuries on Aldana. In fact, accused-appellant before,
during, and after the incident never left his cell.

In the light of the established circumstances, the Court is not convinced that there is enough
evidence to prove accused-appellant's guilt beyond the shadow of a doubt. The paucity of such
evidence only strengthens the suspicion that the prosecution witnesses fabricated their testimony
against accused-appellant because of his having reported their drug trafficking activities in the
provincial jail.

All told, the criminal complicity of accused-appellant, either as a co-conspirator or a principal by

inducement in the crime charged, has not been established beyond reasonable doubt.

WHEREFORE, the decision appealed from is hereby SET ASIDE and REVERSED. Accused-
appellant Abelardo Parungao is hereby ACQUITTED and his immediate release from custody is
ordered unless he is being held on other legal grounds.
G.R. No. 152160 January 13, 2004

VIRGILIO BON, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

Testimony of what one heard a party say is not necessarily hearsay. It is admissible in evidence, not
to show that the statement was true, but that it was in fact made. If credible, it may form part of the
circumstantial evidence necessary to convict the accused.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to nullify the August
22, 2001 Decision2 and the February 15, 2002 Resolution3 of the Court of Appeals (CA) in CA - GR
CR No. 15673. The dispositive part of the assailed Decision reads as follows:

"WHEREFORE, the Decision dated August 23, 1993 convicting [Petitioner] Virgilio Bon is
hereby AFFIRMED with modification on the penalty in that [petitioner] is sentenced to
suffer an indeterminate penalty of imprisonment ranging from ten (10) years of prision mayor,
as minimum to fourteen (14) years [and] eight (8) months of reclusion temporal, as
maximum. Accused-appellant Alejandro Jeniebre, Jr. is hereby ACQUITTED."4

The assailed Resolution, on the other hand, denied petitioner’s Motion for Reconsideration.

The Antecedents

The antecedents are summarized by the CA as follows:

"[Petitioner] Virgilio Bon and Alejandro Jeniebre, Jr. were charged for violating Section 68 of
PD 705, as amended[,] together with Rosalio Bon under an Information, the accusatory
portion of which reads as follows:

‘That sometime in the month of January or February, 1990, at Barangay Basud,

Municipality of Sorsogon, Province of Sorsogon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there,
willfully, unlawfully and feloniously, conspiring, confederating and mutually helping
one another, cut, gather and manufacture into lumber four (4) narra trees, one (1)
cuyao-yao tree, and one (1) amugis tree, with an approximate volume of 4,315 bd. ft.
and valued at approximately P25,000.00, without the knowledge and consent of the
owner Teresita Dangalan-Mendoza and without having first obtained from proper
authorities the necessary permit or license and/or legal supporting documents, to the
 damage and prejudice of the Government and the owner in the aforementioned
amount of P25,000.00.

‘Contrary to law.’

"Upon arraignment on May 16, 1991, [Petitioner] Virgilio Bon[,] Alejandro Jeniebre, Jr. and
Rosalio Bon entered a plea of ‘Not Guilty’ to the crime charged. Thereafter, the trial of the
case proceeded. The prosecution presented Nestor Labayan[e], [Private Complainant]
Teresita Dangalan-Mendoza, [Barangay] Tanod Julian Lascano, Alexander Mendones [and]
Manuel Dangalan as its witnesses. The defense, on the other hand, presented accused
Alejandro Jeniebre, Jr., Rosalio Bon and Virgilio Bon.

"The evidence for the prosecution [w]as synthesized by the trial court, as follows:

‘Prosecution’s evidence was supplied by Julian Lascano, Oscar Narvaez, Alexander

Mendones, Manuel Dangalan, Nestor Labayan[e] and Teresita [Dangalan-Mendoza]
which shows that Teresita [Dangalan-Mendoza] owns a titled agricultural land under
Title No. 6666 located in Basud, Sorsogon, Sorsogon, administered by Virgilio Bon.
Receiving information that trees inside the land were being stolen, cut [and] sawed
into lumber by her administrator and/or workers, she sent her brother Manuel
Dangalan to investigate the report. On February 7, 1990, Manuel Dangalan sought
the help of Barangay Captain Nestor Labayane, who in turn wrote a letter to one of
the [b]arangay [t]anod[s], Julian Lascano, to assist and investigate Teresita
[Dangalan-Mendoza’s] complaint of Illegal Cutting of Trees. On February 12, 1990,
together with Julian Lascano, Manuel Dangalan, Ricardo Valladolid, Natividad
Legaspi and Virgilio Bon repaired to the land of Teresita [Dangalan-Mendoza].
During their investigation, the group discovered six (6) stumps of trees[:] four (4)
Narra trees, one cuyao-yao tree and one am[u]gis tree. Pictures were taken of the
stumps x x x. On the land, Virgilio Bon admitted ordering the cutting and sawing of
the trees into lumber. Oscar Narvaez testified that sometime in January, 1990, he
sawed the trees into six flitches upon instruction of Alejandro Jeniebre, Jr.; Alexander
Mendones, CENRO Officer, upon complaint of Teresita [Dangalan-Mendoza] for
Illegal Cutting of Trees repaired to the land on July 17, 1990, and found four stumps
of trees. Scaling the four stumps, it was his estimate that the lumber produced was
11.97 cubic meters o[r] 4,315 board feet, with a value of P25,376.00 x x x.’

"In their defense, all the three accused took the witness stand and denied the accusation.
Their testimonies were summarized by the trial court, as follows:

‘All the accused testified in their defense. Rosalio Bon, the son of Virgilio Bon denied
the charge[.] [He said] that he was in Manila from December 1989 and returned to
Sorsogon on March 21, 1990. He mentioned that the purpose of filing this case was
to eject his father as tenant of the land.

‘Virgilio Bon testified that he is the tenant of the land of Teresita [Dangalan-Mendoza]
[and was] instituted [as such] by Teresita’s father. He developed the land[,] planting
coconuts, abaca and fruit trees. Teresita [Dangalan-Mendoza] wanted to eject him as
tenant. He and the private complainant [have] an agrarian case. Since Teresita
[Dangalan-Mendoza] refused to receive the landowner’s share of produce, he
deposited the money in the Rural Bank of Sorsogon in the name of Teresita
[Dangalan-Mendoza] x x x. He denied cutting and gathering the trees in the land and
pointed to Teresita [Dangalan-Mendoza] as the one who ordered the trees [to be cut]
 and sawed by Oscar Narvaez. Teresita [Dangalan-Mendoza] upon being confronted
about the cutting of trees, ignored his complaint.

‘Alejandro Jeniebre, Jr., son-in-law of Virgilio Bon, denied that he hired Oscar
Narvaez to saw the lumber. Oscar Narvaez [indicted] him of the crime because the
former had a grudge against him. In a drinking spree, he happened to box Oscar
Narvaez[,] after [which he] heard [the latter threaten him with] revenge.’

"On August 23, 1993, the trial court rendered its decision convicting [Petitioner] Virgilio Bon
and Alejandro Jeniebre, Jr. for the crime charged. Co-accused Rosalio Bon was acquitted.
Aggrieved by the said decision, [Petitioner] Virgilio Bon and Alejandro Jeniebre, Jr.
interposed [an] appeal [to the CA]."5

In their appeal to the CA, petitioner and Jeniebre questioned the prosecution witnesses’ credibility
and the sufficiency of the evidence proving their guilt.

Ruling of the Court of Appeals

The CA sustained the trial court’s assessment of the credibility of Prosecution Witnesses Julian
Lascano and Manuel Dangalan. Both testified that petitioner had admitted to having ordered the
cutting of trees on Teresita Dangalan-Mendoza’s land.

Furthermore, the appellate court held that despite the absence of direct evidence in this case, the
circumstantial evidence was sufficient to convict petitioner. It ruled that the requirements for the
sufficiency of the latter type of evidence under Section 4 of Rule 1336 of the Rules of Court were
amply satisfied by the following established facts: 1) in the presence of Dangalan, Lascano and
Natividad Legaspi, petitioner admitted that he had ordered the cutting of the trees; 2) on February
12, 1990, he and his son Rosalio went to Dangalan-Mendoza, demanding that she pay the value of
the trees cut; and 3) on February 13, 1990, petitioner asked her to forgive him for cutting the trees.

The CA held, however, that the same circumstances did not support the conviction of Jeniebre.
Aside from the testimony of Oscar Narvaez that Jeniebre hired him to cut the trees into flitches, no
other evidence was presented to show the latter’s participation in the offense charged. Moreover, the
appellate court held that the res inter alios acta rule under Section 28 of Rule 1307 of the Rules of
Court would be violated by binding Jeniebre to petitioner’s admission, which did not constitute any of
the exceptions8 to this provision. It thus acquitted him.

As to petitioner, the CA modified the penalty imposed, pursuant to Section 68 of the Revised
Forestry Code as amended, Articles 309 and 310 of the Revised Penal Code, and Section 1 of the
Indeterminate Sentence Law.

Hence, this Petition.9

Issues

Petitioner submits the following issues for our consideration:

"I

Whether hearsay testimony[,] which is denied by the alleged author under oath in open court,
is admissible in evidence against him.
 "II

Whether hearsay testimony allegedly made to potential prosecution witnesses who are not
police operatives or media representatives is admissible in evidence against the author
because what a man says against himself[,] if voluntary, is believable for the reason that it is
fair to presume that [it] correspond[s] with the truth and it is his fault if they do not (U.S. v.
Ching Po, 23 Phil. 578, 583 (1912).

"III

Whether or not x x x the [testimonies of the] prosecution witnesses x x x that x x x petitioner

Bon admitted his guilt to them should be given high credence by the courts of justice
considering that x x x many people who are being quoted in media today x x x have been
found to be x x x lying. In other words, how much probity should we give a lying witness?

"IV

Assuming arguendo that petitioner Bon ma[d]e the extra-judicial admission to the
prosecution witnesses, [whether or not] x x x the same [is constitutionally] admissible in
evidence against him?"10

Simply put, the points challenged by petitioner are as follows: 1) the admissibility of his purported
extrajudicial admission of the allegation, testified to by the prosecution witnesses, that he had
ordered the cutting of the trees; and 2) the credibility and the sufficiency of the testimonies of those
witnesses.

The Court’s Ruling

The Petition has no merit.

First Issue:

Admissibility of the Extrajudicial Admission

At the outset, it must be emphasized that the present Petition is grounded on Rule 45 of the Rules of
Court. Under Section 1 thereof, "only questions of law which must be distinctly set forth" may be
raised. A reading of the pleadings reveals that petitioner actually raised questions of fact -- the
credibility of the prosecution witnesses and the sufficiency of the evidence against him. Nonetheless,
this Court, in the exercise of its sound discretion and after taking into account the attendant
circumstances, opts to take cognizance of and decide the factual issues raised in the Petition, in the
interest of the proper administration of justice.11

In the main, petitioner contends that Lascano’s and Dangalan’s separate testimonies12 regarding his
alleged extrajudicial admission constitute hearsay evidence and are, therefore, inadmissible. He also
argues that his supposed admission should not have been admitted, because it had been taken
without the assistance of counsel at a time when he was already regarded as a suspect.

We disagree.

Section 36 of Rule 130 of the Rules of Court states the rule on hearsay evidence as follows:
 "Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. - A
witness can testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise provided in these rules."

Under the above rule, any evidence -- whether oral or documentary -- is hearsay if its probative
value is not based on the personal knowledge of the witness, but on that of some other person who
is not on the witness stand.13 Hence, information that is relayed to the former by the latter before it
reaches the court is considered hearsay.14

In the instant case, Lascano and Dangalan testified that on February 12, 1990, they had heard
petitioner admit to having ordered the cutting of the trees. Their testimonies cannot be considered as
hearsay for three reasons. First, they were indisputably present and within hearing distance when he
allegedly made the admission. Therefore, they testified to a matter of fact that had been derived from
their own perception.

Second, what was sought to be admitted as evidence was the fact that the utterance was actually
made by petitioner, not necessarily that the matters stated therein were true. On this basis, a
statement attributed to a person who is not on the witness stand is admissible; it is not covered by
the hearsay rule.15 Gotesco Investment Corporation v. Chatto16 ruled that evidence regarding the
making of such statement is not secondary but primary, because the statement itself may constitute
a fact in issue or be circumstantially relevant as to the existence of that fact.

Third, even assuming that the testimonies were hearsay, petitioner is barred from questioning the
admission of Dangalan’s testimony, because he failed to object to it at the time it was offered. It has
been held that when parties fail to object to hearsay evidence, they are deemed to have waived their
right to do so; thus, it may be admitted.17 The absence of an objection is clearly shown by the
transcript of the stenographic notes, from which we quote:

"Atty. Fajardo:

Q Did you reach the land in question?

A Yes, sir.

Q And upon reaching the land in question, what did you do?

A We were able to see the cut trees.

Q And were you able to see who cut the trees?

A We were not able to see.

Q And how many trees were cut?

A There were newly cut trees and 4 others which have been cut for a long time.

Q What kind of trees were cut according to you?

A Narra, amogis and kuyawyaw.

Q Upon seeing these cut trees, what did you do?

 A I asked Virgilio Bon why those trees were [cut] down and he said that he took the liberty of
cutting those trees.

Q In your own understanding, [M]r. [W]itness, what did the accused mean when he said that
he took [the] liberty of cutting those trees?

A He caused the cutting of the trees.

Q And during the time you were conversing, were you alone?

A I was with the barangay tanod.

Q And who were the members of the barangay tanod who were with you at that time?

A Julian Lascano, Jr. and Natividad Legaspi."18

Moreover, a party’s verbal admission that is established through the testimonies of the persons who
heard it19 fall under Section 26 of Rule 130 of the Rules of Court. According to this provision, "[t]he
act, declaration or omission of a party as to a relevant fact may be given in evidence against him."
This rule is based upon the notion that no man would make any declaration against himself, unless it
is true.20 The testimony of petitioner may, therefore, be received in evidence against him.

Regarding his alleged uncounselled admission, suffice it to stress that it was not given during a
custodial investigation and, certainly, not to police authorities. Custodial investigation has been
defined as any questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of freedom of action in any significant way.21 We have ruled previously
that constitutional procedures on custodial investigation do not apply to a spontaneous statement
that is not elicited through questioning by the authorities, but is given in an ordinary manner.22

Verily, the inquiry on the illegal cutting of trees, which -- with the assistance of the
barangay tanods23 -- was conducted by the owner’s brother, Manuel Dangalan cannot be deemed a
custodial investigation. Consequently, the guarantees of Section 12 (1) of Article III24 of the 1987
Constitution, or the so-called Miranda rights, cannot be successfully invoked by petitioner.25

Furthermore, allegations of impropriety committed during custodial investigation are relevant and
material only to cases in which an extrajudicial admission or confession is the basis of conviction.26 In
the present case, the conviction of petitioner was not deduced solely from his admission, but from
the confluence of circumstantial evidence showing his guilt beyond reasonable doubt.

Second Issue:

Credibility and Sufficiency of Prosecution Evidence

The time-tested rule is that the factual findings and conclusions of the trial court on the credibility of
witnesses deserve to be respected because of its unique advantage of having observed their
demeanor as they testified.27 Equally established is the rule that factual findings of the Court of
Appeals are conclusive on the parties and carry even more weight when such findings affirm those
of the trial court,28 as in this case. This Court refrains from disturbing the CA’s findings, if no glaring
errors bordering on a gross misapprehension of facts can be gleaned from them.29 We have no
reason to depart from this rule. Hence, we affirm the lower courts’ assessment of the credibility of
the prosecution witnesses.
We now come to the sufficiency of the prosecution’s evidence.

Section 68 of the Forestry Code, as amended,30 provides:

"SEC. 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without
License. — Any person who shall cut, gather, collect, remove timber or other forest products
from any forest land, or timber from alienable or disposable public land, or from private land,
without any authority, or possess timber or other forest products without the legal documents
as required under existing forest laws and regulations, shall be punished with the penalties
imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case
of partnerships, associations, or corporations, the officers who ordered the cutting, gathering,
collection or possession shall be liable, and if such officers are aliens, they shall, in addition
to the penalty, be deported without further proceedings on the part of the Commission on
Immigration and Deportation.

"The Court shall further order the confiscation in favor of the government of the timber or any
forest products cut, gathered, collected, removed, or possessed, as well as the machinery,
equipment, implements and tools illegally used in the area where the timber or forest
products are found."

Punishable under the above provision are the following acts: (1) cutting, gathering, collecting or
removing timber or other forest products from the places therein mentioned without any authority;
and (b) possessing timber or other forest products without the legal documents.31

Petitioner was charged with the first offense.32 It was thus necessary for the prosecution to prove the
alleged illegal cutting, gathering or manufacture of lumber from the trees.

It is undisputed that no direct evidence was presented. This kind of evidence, however, is not the
only matrix from which the trial court may draw its conclusions and findings of guilt.33 Conviction may
be based on circumstantial evidence, as long as the circumstances proven constitute an unbroken
chain that leads to a fair and reasonable conclusion that the accused is guilty beyond reasonable
doubt.34

To sustain a conviction based on circumstantial evidence, it is necessary that the following elements
concur:

1. There is more than one circumstance.

2. The facts from which the inferences are derived are proven.

3. The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.35

Did the circumstances in this case satisfy the above requirements? We rule in the affirmative. In its
assessment of the evidence, the regional trial court (RTC) considered the following proven facts and
circumstances:

"x x x Accused Virgilio Bon[,] being the tenant is in actual possession and control over the
land, fruit trees and big trees. Virgilio Bon has a better chance to cut and saw the lumber. He
admitted before the [b]arangay [t]anod[,] Julian Lascano[,] with other witnesses present[,]
that he ordered the cutting of the trees[, and the] saw[ing thereof] by his son-in-law, accused
 Alejandro Jeniebre, Jr. His admission was corroborated by Oscar Narvaez, the one hired by
Alejandro Jeniebre, Jr., to saw the lumber. His extrajudicial confession is admissible
evidence against him as it was voluntary and not under custodial investigation."36

The appellate court, on the other hand, found that the following circumstances sufficiently proved
petitioner’s culpability:

"x x x (1) [Petitioner] Virgilio Bon admitted in the presence of Manuel Dangalan, Julian
Lascano and Natividad Legaspi that he caused the cutting of the questioned trees; (2) [o]n
February 12, 1990, [Petitioner] Virgilio Bon and his son[,] x x x Rosalio Bon[,] went to private
complainant[,] demanding [that] the latter x x x pay the value of the questioned trees which
they had cut; (3) [o]n February 13, 1990, [Petitioner] Virgilio Bon went to private complainant
to ask forgiveness for cutting the trees."37

A review of the records also shows that the fact of the alleged cutting, gathering and manufacture of
lumber from the trees was proven by the prosecution through the following pieces of documentary
evidence: photographs of tree stumps,38 the investigation report of an officer of the Community
Environment and Natural Resources (CENRO) that no permit was secured for the cutting of the
trees,39 and the CENRO’s computation of the value40 of the timber generated from the felled trees.
This fact, together with the circumstantial evidence, indubitably points to no other conclusion than
that petitioner was guilty as charged.

Correct Penalty

We now go to the penalty. We deem it necessary to discuss this matter because of the differing
penalties imposed by the appellate and the trial courts. The RTC imposed an indeterminate
sentence of seven (7) years, four (4) months and one (1) day of prision mayor as minimum; to
eleven (11) years, six (6) months and twenty-one (21) days of prision mayor as maximum. The CA,
however, increased the penalty to imprisonment ranging from ten (10) years of prision mayor as
minimum; to fourteen (14) years and eight (8) months of reclusion temporal as maximum.

Article 68 of the Revised Forestry Law, as amended by Executive Order No. 277,41 provides that any
violation thereof "shall be punished with the penalties imposed under Articles 30942 and 31043 of
Revised Penal Code." This amendment -- which eliminated the phrase "shall be guilty of qualified
theft as defined and punished under Articles 309 and 310 of the Revised Penal Code" -- has already
been interpreted by this Court. According to its interpretation, the quoted phrase means that the acts
of cutting, gathering, collecting, removing or possessing forest products without authority constitute
distinct offenses that are now independent of the crime of theft under Articles 309 and 310 of the
Revised Penal Code (RPC), but that the penalty to be imposed is that which is provided under these
articles.44

Both the trial court45 and the CA46 found that the value of the lumber was P12,000. Under Articles 309
and 310 of the RPC, the statutory penalty should be two degrees higher than prision correccional in
its medium and maximum periods;47 or prision mayor in its maximum period to reclusion temporal in
its minimum period. The Indeterminate Sentence Law,48 however, reduces the sentence to an
indeterminate penalty anywhere in the range of six (6) years and one (1) day of prision mayor, as
minimum, to 14 years and eight (8) months of reclusion temporal as maximum. Clearly, the
sentences imposed by the trial court and the CA are within the allowable range. In view, however, of
the finding of the RTC that no mitigating or aggravating circumstance attended the commission of
the offense, the penalty it imposed was more in accord with the liberal spirit of the law towards the
accused. Hence, we adopt the trial court’s indeterminate sentence of seven (7) years, four (4)
months and one (1) day of prision mayor as minimum; to eleven (11) years, six (6) months and
twenty-one (21) days of prision mayor as maximum.

WHEREFORE, the assailed Decision of the Court of Appeals is hereby AFFIRMED with
the MODIFICATION that petitioner is sentenced to suffer an indeterminate penalty of imprisonment
of seven (7) years, four (4) months and one (1) day of prision mayor as minimum; to eleven (11)
years, six (6) months and twenty-one (21) days of prision mayor as maximum. Costs against
appellant.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.
G.R. No. 133964 February 13, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAMIL PEÑA, accused-appellant.

DECISION

YNARES-SANTIAGO, J.:

Accused-appellant Ramil Peña was charged with murder in an Information which reads, thus:

That on or about the 8th day of December, 1995, in the municipality of Obando, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused armed
with a firearm with intent to kill one Jimbo Pelagio y Ferrer, did then and there wilfully, unlawfully and
feloniously, with evident premeditation and treachery, attack, assault and shoot the said Jimbo
Pelagio y Ferrer, hitting the latter on the head thereby inflicting wound which directly caused the
death of the said Jimbo Pelagio y Ferrer.1

In the early morning of December 8, 1995, accused-appellant hired Jimbo Pelagio, a tricycle driver
working the night shift, to take him to Paco, Obando, Bulacan. When they reached their destination,
he ordered Pelagio to get off the tricycle. Then, accused-appellant robbed Pelagio of his money and
repeatedly struck him on the head with a gun. Pelagio fell on the ground unconscious. Accused-
appellant shot him on the head and fled on board his tricycle.

That same morning, SPO1 Froilan Bautista got a call from the Valenzuela Emergency Hospital
stating that a man had been shot on the head and was in their hospital. SPO1 Bautista and SPO1
Jose Sta. Ana rushed to the hospital and found the still conscious Pelagio lying on a stretcher.

SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took down
on two sheets of yellow paper. After his statement was taken, Pelagio affixed his thumbmark on both
sheets. In his statement, Pelagio related how accused-appellant inflicted his injuries on him.

The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had been shot,
proceeded to the hospital. There, Pelagio told him that it was accused-appellant who shot him and
took away his tricycle.

Francisca Pelagio, Jimbo Pelagio’s mother, also rushed to the hospital. Upon advice of the doctors,
Francisca brought her son to the Jose Reyes Memorial Hospital. On February 6, 1996, Jimbo
Pelagio expired. According to Francisca, she spent P26,000.00 for his medical and funeral
expenses.

For his part, accused-appellant claimed that he was in San Isidro, San Luis, Pampanga together with
his wife on the date of the incident. He went into hiding in the house of his uncle, Maximiano
Guevarra, for nine (9) months because he allegedly killed a certain Roger Wininsala. He came to
know that he was being accused of the murder of Pelagio, whom he did not know, only while he was
in detention on a drug charge.

Accused-appellant’s testimony was corroborated by his uncle Maximiano Guevarra.

The trial court was not persuaded. On May 13, 1998, it rendered a decision,2 the dispositive portion
of which reads:

WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEÑA GUILTY beyond
reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code and
sentences him to suffer the penalty of Reclusion Perpetua and to pay the victim’s mother, Francisca
Pelagio, the amount of P26,000.00 representing actual damages and the costs of suit.

Hence this appeal.

Accused-appellant claims that the trial court erred in finding that accused-appellant shot Pelagio
because there is no evidence that a bullet was embedded in the skull of the victim. More specifically,
the attending physicians were not presented to testify that the victim died of a gunshot wound in the
head.

Accused-appellant next claims that the evidence relied upon by the trial court is hearsay and
inadmissible. He argues that said evidence does not constitute res gestae. Particularly, he
emphasizes that "it was imperative on the part of the lower court that it should have appreciated the
principle of res gestae on the basis of the contents of Jimbo Pelagio’s statement reduced in
handwritten form by SPO1 Bautista, and not on the dying declarations made by Jimbo Pelagio to
SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these prosecution witnesses had all
the time to contrive and improvise on what was actually told them, allegedly by Jimbo Pelagio."3

The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as the testimonies of
the prosecution witnesses on the victim’s declaration can be considered as part of the res gestae,
hence, an exception to the hearsay rule.

The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads:

T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan ka
ng salaysay?

S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEÑA sa ulo at kinuha and tricycle kong
minamaneho.

T: Taga saan itong si Ramil Peña?

S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.

T: Saan, kailan at anong oras nangyari ito?

S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-4:15 ng umaga.

T: Sakay mo ba itong si Ramil Peña?

S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.

T: Dati mo bang kilala si Ramil Peña?

S: Opo.
T: Ano ba ang tatak ng tricycle mo?

S: Yamaha RS-100, kulay itim.

T: Sino and may-ari ng tricycle?

S: Si Rey Dagul.

T: Binaril ka ba ni Ramil?

S: Muntik na ho.

T: Bakit sa iyo ginawa ni Ramil and bagay na ito?

S: Ewan ko ho.4

The trial court ruled that Pelagio’s statement was a dying declaration since it was uttered at the point
of death and with consciousness of that fact due to the serious nature of his wounds. Thus, it
admitted Pelagio’s statement in evidence as an exception to the hearsay rule.

The requisites for the admissibility of dying declarations have already been established in a long line
of cases. An ante-mortem statement or dying declaration is entitled to probative weight if: (1) at the
time the declaration was made, death was imminent and the declarant was conscious of that fact; (2)
the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration
relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5)
the declaration is offered in a criminal case wherein the declarant’s death is the subject of the
inquiry.5

The first element is lacking in the case at bar. It was not established with certainty whether Pelagio
uttered his statement with consciousness of his impending death. While he was in pain when he
made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost
shot him.6

The significance of a victim’s realization or consciousness that he was on the brink of death cannot
be gainsaid. Such ante mortem statement is evidence of the highest order because at the threshold
of death, all thoughts of fabricating lies are stilled. The utterance of a victim made immediately after
sustaining serious injuries may be considered the incident speaking through the victim. It is entitled
to the highest credence.7

Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement
still can not be considered a dying declaration. The crucial factor to consider is the contemporaneity
of the moment when the statement was made and the moment of the realization of death. The time
the statement was being made must also be the time the victim was aware that he was dying.

While it may not qualify as a dying declaration, Pelagio’s statement may nonetheless be admitted in
evidence as part of the res gestae. In People v. Marollano,8 this Court held:

The requisites for the admissibility of the victim’s ante mortem statement as part of the res
gestae and also as a dying declaration are present in this case, hence the same should be admitted
under both exceptions to the hearsay rule. (Citation omitted) While the admissibility thereof would
naturally not be affected whether viewed under either or both considerations, the advantage of
resting the issue on the aforesaid dual bases is that its admission would be invulnerable to a
theorized absence of an element of one of said exceptions. This is particularly important in this case,
considering that the very identification of the assailant and the accuracy thereof are essentially
based on the declaration of the victim. (Emphasis supplied)

A declaration made spontaneously after a startling occurrence is deemed as part of the res
gestae when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were
made before the declarant had time to contrive or devise; and (3) the statements concern the
occurrence in question and its immediately attending circumstances.9

In People v. Naerta,10 this Court held that:

The term "res gestae" comprehends a situation which presents a startling or unusual occurrence
sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements
are made under such circumstances as to show lack of forethought or deliberate design in the
formulation of their content.

Pelagio’s declaration is admissible as part of the res gestae since it was made shortly after a
startling occurrence and under the influence thereof. Under the circumstances, the victim evidently
had no opportunity to contrive his statement beforehand.11

In People v. Hernandez,12 the infliction on a person of a gunshot wound on a vital part of the body
should qualify by any standard as a startling occurrence. And the rule is that testimony by a person
regarding statements made by another as that startling occurrence was taking place or immediately
prior or subsequent thereto, although essentially hearsay, is admissible exceptionally, on the theory
that said statements are natural and spontaneous, unreflected and instinctive, made before there
had been opportunity to devise or contrive anything contrary to the real fact that occurred, it being
said that in these cases, it is the event speaking through the declarant, not the latter speaking of the
event.

In this case, it is clear that the pistol-whipping and the gunshot on the head of Pelagio qualified as a
startling occurrence. Notably, Pelagio constantly complained of pain in his head while his statement
was being taken by SPO1 Bautista, so much so that there was no opportunity for him to be able to
devise or contrive anything other than what really happened.

In People v. Putian,13 the Court held that although a declaration does not appear to have been made
by the declarant under the expectation of a sure and impending death, and, for that reason, is not
admissible as a dying declaration, yet if such declaration was made at the time of, or immediately
after, the commission of the crime, or at a time when the exciting influence of the startling
occurrence still continued in the declarant’s mind, it is admissible as part of the res gestae.

Indeed the defense admitted as much when it stated, thus:

We should stress that Jimbo Pelagio’s handwritten statement, or his declarations therein, were made
immediately after the res gestae or the principal act took place, and he had no time to contrive or
devise, while his statements directly concerned the occurrence in question and its immediate
circumstances. We should take note further that the handwritten statement’s contents are rather
detailed in terms of the specifics of the circumstances before, during and after the subject incident
which elicits guarded conclusion that notwithstanding Jimbo Pelagio’s physical condition at the
Valenzuela Emergency Hospital, he was conscious and lucid enough to intelligently respond rather
spontaneously on the questions propounded to him by SPO1 Bautista. These acts and statements
made by Jimbo Pelagio definitely constitute part of res gestae and not the testimonies and/or written
statements of the three prosecution witnesses in this case.14

By stating, however, that the testimonies or the written statements of the three prosecution
witnesses were taken into consideration by the trial court as part of the res gestae betrays a
misapprehension of said principle. This Court agrees with the Solicitor General when it observed
thus:

Since res gestae refers to those exclamations and statements made by either the participants,
victims or spectators to a crime before, during or immediately after the commission of the crime, they
should necessarily be the ones who must not have the opportunity to contrive or devise a falsehood
but not the persons to whom they gave their dying declaration or spontaneous statement. In other
words, the witness who merely testifies on a res gestae is not the declarant referred to in the second
requisite whose statements had to be made before he "had the time to contrive or devise a
falsehood." (citation omitted)

Thus, even if there were intervening periods between the time the victim gave his account of the
incident to the prosecution witnesses and the time the latter first disclosed what the victim told them,
the same will not affect the admissibility of the victim’s declaration or statement as part of res
gestae since it is sufficient that such declaration or statement was made by the victim before he had
time to contrive or devise a falsehood.15

In any case, there is no reason why SPO1 Bautista would contrive or devise a falsehood especially
on the matter that Pelagio was shot on the head and that it was accused-appellant who shot him. As
a police officer, he was duty-bound to investigate and unearth the facts of the case. There is a
presumption that as an officer of the law, he sought only the truth. Besides, no motive was shown as
to why he would contrive or devise a falsehood against accused-appellant.

In his Investigation Report,16 SPO1 Bautista gathered that accused-appellant shot Pelagio from the
Radiologic Report conducted at the Valenzuela District Hospital wherein the presence of metallic
fragments was discovered. Moreover, the results of the C.T. Scan conducted on the victim showed
the presence of metallic fragments in his skull. In Pelagio’s Death Certificate,17 the underlying cause
of death was indicated as gunshot wound to the head.

There is, therefore, no merit in accused-appellant’s contention that there was no evidence that
Pelagio was shot in the head. It should be noted that accused-appellant pistol-whipped Pelagio
repeatedly. The Solicitor General’s following submission would, therefore, make sense:

Given the probability that he was already unconscious or his head had become numb due to severe
head injuries when accused-appellant shot him, it is not unlikely for the victim not to have known or
felt being shot and hit by accused-appellant on the head. This was probably the reason why in his
initial declaration, the victim merely stated that he was nearly shot by accused-appellant.18

Regardless, Pelagio categorically declared that it was accused-appellant who caused his head
injuries which eventually led to his death. SPO1 Bautista’s testimony as well as Wilfredo Lampa’s
1âwphi1

and Francisca Pelagio’s merely corroborated Pelagio’s statement that it was accused-appellant who
caused his head injuries.

The trial court found, thus:

The straightforward and consistent testimonies of the three vital prosecution witnesses bear the
earmarks of credibility. Further, there exists no ill motive on their part to prevaricate. This absence of
evidence as to an improper motive actuating the principal witnesses for the prosecution strongly
tends to sustain that no improper motive existed and their testimony is worthy of full faith and credit
(citation omitted), for witnesses do not generally falsely impute to an accused a serious criminal
offense were it not the untarnished truth. (Citation omitted)

Settled is the rule that in the absence of any fact or circumstance of weight and influence which has
been overlooked or the significance of which has been misconstrued to impeach the findings of the
trial court, the appellate courts will not interfere with the trial court’s findings on the credibility of the
witnesses or set aside its judgment, considering that the trial court is in a better position to decide
the question for it had heard the witnesses themselves during the trial. The evaluation of the
credibility of witnesses is a matter that particularly falls within the authority of the trial court.19

However, this Court cannot agree with the trial court that the crime should be murder. While evident
premeditation and treachery were alleged in the information, the trial court did not state why the
killing was qualified to murder. The prosecution failed to establish the attendance of the qualifying
circumstances with concrete proof. The crime proved was only homicide.

In accordance with Article 249 of the Revised Penal Code, accused-appellant should be sentenced
to reclusion temporal. There being no mitigating or aggravating circumstance, the penalty to be
imposed shall be the medium period of reclusion temporal, ranging from fourteen (14) years, eight
(8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate
Sentence Law, accused-appellant shall be entitled to a minimum penalty, to be taken from the
penalty next lower in degree or prision mayor, in any or its periods, ranging from six (6) years and
one (1) day to twelve (12) years.

As to the matter of damages, we hold that the trial court should have awarded civil indemnity in the
amount of P50,000.00 in line with prevailing jurisprudence.20 The award of P26,000.00 as actual
damages is upheld, being duly proven with receipts.21

WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accused-appellant Ramil Peña
is found guilty beyond reasonable doubt of homicide and sentenced to suffer an indeterminate
sentence of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum, and to pay the heirs of the victim Jimbo Pelagio the
amount of P50,000.00 as civil indemnity and P26,000.00 as actual damages.

Costs against accused-appellant.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 175593 October 17, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SALVADOR SANTOS, JR. y VELASCO, JR., SALVADOR, Appellant.

DECISION

TINGA, J.:

Salvador Santos, Jr. y Salvador (appellant) was charged before the Regional Trial Court of San
Mateo, Rizal, Branch 77 with illegal sale and possession of shabu in violation of Sections 5 and 11,
Article II of Republic Act No. 91651 (R.A. 9165), to wit:

CRIMINAL CASE No. 6365

That on or about the 28th day of August 2002 in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give
away to another person one (1) heat-sealed plastic sachet of white crystalline substance weighing
0.08 gram which was found positive result (sic) to the screening and confirmatory test for
Methamphetamine Hydrochloride, a dangerous drug.

CONTRARY TO LAW.2

CRIMINAL CASE No. 6366

That on or about the 28th day of August 2002 in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being
authorized by law, did then and there willfully, unlawfully and knowingly have in his possession and
control white crystalline substance placed in twelve (12) heat sealed transparent plastic sachets with
a total weight of 1.36 grams which were found positive to the test for Methamphetamine
Hydrochloride, a dangerous drug.

CONTRARY TO LAW.3

Appellant entered a negative plea to both charges.4 The two cases were jointly heard. At the trial, the
prosecution presented its lone witness, PO3 Juanito L. Tougan.

Tougan, who was assigned at the Intelligence Section of the San Mateo, Rizal Police Station,
testified that at around 9:50 p.m. on 28 August 2002, he, together with SPO1 Arellano and PO2
Pontilla received information from their civilian informant that a certain Badong Santos was selling
illegal drugs. The police officers right away planned the arrest of herein appellant and they agreed
that Tougan would act as a poseur-buyer. Together with the civilian informant, they headed to
appellant’s residence. There, Arellano and Pontilla positioned themselves more or less ten (10)
meters away from the house where they could observe the impending transaction without being
noticed. It was dark outside but the house was well-lit. Appellant opened the gate and upon seeing
the civilian informant uttered, "Pare." The civilian informant replied, "Pare, kukuha kami ng
panggamit." Tougan handed appellant the marked money worth ₱200.00 which bore Tougan’s
initials, "JLT." After taking the money, appellant went back inside the house and returned with a
plastic sachet of shabu. Tougan got hold of the plastic sachet of shabu, held appellant’s hand and
introduced himself as a policeman. Tougan then directed appellant to empty his pockets of their
contents. Tougan recovered the two (2) one hundred peso bills used as marked money and twelve
(12) plastic sachets of shabu contained inside a white box. The police officers thereafter brought
appellant to the police station. There, Tougan wrote his initials on all the thirteen (13) sachets
of shabu. A document was prepared for these to be examined at the PNP Crime Laboratory. Tougan
also stated that he had executed a sworn statement regarding the buy-bust incident.5

On cross-examination, Tougan stated that appellant had been included in a drug-watch list
submitted by the barangay captain containing the names of drug pushers in the area. At the time of
appellant’s apprehension, however, the barangay captain had already discontinued submission of
the said list to the police. Tougan was directed by the judge to bring to court the watch list he had
talked about. 6

At the next hearing, Tougan presented the watch list for the years 2000 and 2001. He explained that
appellant was not included in the said list as the latter was then detained in the provincial jail for
another criminal charge. He disclosed, however, that the latest watch list in possession of the police
department was dated July 2003.7

As lone witness for the defense, appellant testified that at around 11:00 p.m. on 28 August 2002, he
was at home fixing a fluorescent lamp. His wife and three children were there with him. Suddenly,
they heard a sound coming from the gate. Appellant peeped through the window and saw policemen
Tougan, Arellano and Pontilla. He was able to recognize them because he had served as their
informer for almost three months. He went out of the house to greet them and in response, the
policemen told him that they had been looking for him. They then held his hands and pushed him
into the house. Tougan shoved him onto the sofa, and Arellano and Pontilla searched the house.
Tougan frisked him and confiscated his money of ₱180.00. Meantime, Pontilla searched the table
and got hold of a set of dart pins owned by appellant’s son. Appellant asked the police officers why
they came to his house and they replied that they had been harboring a grudge against him because
he no longer wanted to serve as their informer. He saw Pontilla take a box out of his pocket and
heard him say that it contained shabu and drug paraphernalia. He told Pontilla that if the box was his
he would not have placed it on the table but instead hidden it from his children. Pontilla replied,
"tumigil ka diyan, tumahimik ka." At the time of the commotion, appellant stated that the members of
his family stayed in another room and were very afraid. Pontilla told appellant’s wife, "ilabas mo na
iyan" to which she replied, "Ano ang ilalabas ko? Pinerwisyo ninyo na nga kami." Afterwards,
appellant was handcuffed and dragged to the police station where he was detained at once without
being informed of his rights.8

Appellant also testified that aside from being a police informer, he also worked as a tricycle driver.
He likewise stated that he was applying for a job at the Office of the Provincial Prosecutor and that
he had a recommendation from police officer Amatong. He denied being a drug pusher, as well as
receiving the marked money. And while appellant believed that the evidence against him had been
planted, he did not file a complaint against the police officers because nobody would attend to his
complaint.9

On cross-examination, appellant stated that he volunteered to be a police informer and served as

such from May to July 2002. During this period, he reported to the police officers four times and had
acted three times as a poseur-buyer. He, however, decided to sever his ties with the police officers
as the latter reneged on their promise to give him money each time a drug pusher was arrested. He
also claimed that the police officers had him arrested in order to conceal the illegal acts they had
committed during arrests, such as confiscating all the belongings and monies of the person arrested.
But he admitted having been previously indicted in two (2) cases for selling and
possessing shabu.10 On re-direct examination, he revealed that he was released from imprisonment
on 13 December 2001. Thereafter, he worked as a tricycle driver and applied for a job in the
municipal government of San Mateo, Rizal.11

After trial, the trial court rendered a Decision12 dated 17 November 2004 disposing as follows:

WHEREFORE, premises considered, accused SALVADOR SANTOS Y SALVADOR is hereby found

GUILTY as charged beyond reasonable doubt and is hereby sentenced to Life Imprisonment and to
pay a fine of FIVE HUNDRED THOSAND (sic) (₱500,000.00) PESOS for Violation of Section 5, of
R.A. 9165 and to suffer an imprisonment of TWELVE (12) YEARS AND ONE DAY TO TWENTY
YEARS (20) and to pay a fine of THREE HUNDRED THOUSAND (₱300,000.00) PESOS for
violation of Section 11, of the same law.

SO ORDERED.13

Appellant elevated the judgment of conviction to the Court of Appeals. Before the Court of Appeals,
he argued that the trial court erred: (1) in convicting him of the crimes charged despite the
prosecution’s failure to prove his guilt beyond reasonable doubt; and (2) in giving credence to the
testimony of the prosecution witness.14

The Office of the Solicitor General (OSG), in lieu of an appellee’s brief, filed a Manifestation and
Motion for Acquittal.15 It submitted that there existed reasonable doubt on the culpability of appellant
as the identity of the corpus delicti was not sufficiently established and the testimony of the lone
prosecution witness, Tougan, was of doubtful veracity.16 It further maintained that should there be
reservations regarding the innocence of appellant, the equipoise rule should apply.17

The Court of Appeals in a Decision18 dated 31 July 2006 in CA G.R. CR-H.C. No. 01227 affirmed
with modification the decision of the trial court. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit.
The appealed DECISION dated November 17, 2004 of the Regional Trial Court of San Mateo, Rizal,
Branch 77 is hereby AFFIRMED with MODIFICATION in that the accused-appellant is hereby
instead sentenced in Criminal Case No. 6366 to suffer an indeterminate prison term of eight (8)
years and one (1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal. Needless to add, the P300,000.00 fine STANDS.

The regulated drug subject of this case is hereby ordered confiscated and forfeited in favor of the
Government to be disposed of in accordance with law.

With costs against the accused-appellent.

SO ORDERED.19

The Court of Appeals held that absent any arbitrariness or oversight in the appreciation of facts or
circumstances of weight and substance, it would not disturb on appeal the trial court’s evaluation of
the credibility of witnesses. The Court of Appeals, moreover, stated that police officers involved in
buy-bust operations are presumed to have performed their duties regularly. The fact that appellant’s
name was not actually found in the drug-watch list provided by Tougan did not constitute
inconsistency nor did it render doubtful his entire testimony. The watch list was brought up by the
prosecution only to highlight the fact that appellant was previously involved in the illegal peddling of
drugs and that the buy-bust operation was prompted by reliable information.20

The Court of Appeals dismissed appellant’s defense of frame-up as self-serving and uncorroborated.
It ruled that the evidence on record supports his guilt beyond reasonable doubt.21 The appellate
court, however, modified the penalty imposed by the trial court in Criminal Case No. 6366. The
appellate court reduced the prison term of twelve (12) years and one (1) day to twenty (20) years,
imposed by the trial court, to an indeterminate prison term of eight (8) years and one (1) day
of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. The
fine of ₱300,000.00 stood.22

Appellant is now before the Court reiterating his previous submissions. Through his Manifestation (In
Lieu of Supplementary Brief)23 dated 13 April 2007, appellant stated that he had exhaustively argued
all the relevant issues in his brief filed before the Court of Appeals. Thus, he manifested that he was
adopting it as his supplemental brief. The OSG likewise manifested that it was no longer filing a
supplemental brief.24

There is merit in the appeal.

The Constitution mandates that an accused shall be presumed innocent until the contrary is proven
beyond reasonable doubt. The prosecution has the burden to overcome such presumption of
innocence by presenting the quantum of evidence required. Corollarily, the prosecution must rest on
its own merits and must not rely on the weakness of the defense. If the prosecution fails to meet the
required quantum of evidence, the defense may logically not even present evidence on its own
behalf. In which case, the presumption of innocence shall prevail and hence, the accused shall be
acquitted. However, once the presumption of innocence is overcome, the defense bears the burden
of evidence to show reasonable doubt as to the guilt of the accused. Reasonable doubt is that doubt
engendered by an investigation of the whole proof and an inability after such investigation to let the
mind rest each upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to
convict a criminal charge, but moral certainty is required as to every proposition of proof requisite to
constitute the offense.25

In the case at bar, the testimony for the prosecution and for the defense are diametrically opposed to
each other. The prosecution’s version of events solely consisted of Tougan’s testimony regarding
the buy-bust operation whereas appellant, who cried frame-up, was presented as the lone witness
for the defense. In resolving such conflict, which involves the credibility of witnesses, the usual rule
is for the Court to respect the findings of the trial court, it having had the opportunity to hear the
witnesses themselves and to observe their deportment and manner of testifying during trial.
Nonetheless, the rule admits of certain exceptions. Thus, the factual findings of the trial court may be
reversed if, by the evidence or the lack of it, it appears that the trial court erred.26

The trial court decreed appellant’s guilt as follows:

His admission of knowing drug violators in San Mateo, only confirms the fact that he is one of them
and his nefarious activities resulted to his several arrest and convictions in two (2) Courts of San
Mateo, Rizal.

Accused, himself admitted he was arrested and convicted by RTC Branch 77 San Mateo, Rizal and
records of this Court confirms this fact. He averred, thus:
 xxx

The two (2) drug cases previously filed with this Court, against the accused were Criminal cases
nos. 3483-98 and 3484-98, which resulted to his convictions for possession and drug pushing and
was sentenced to a jail term of two (2) years for each case. Two (2) more cases were filed against
him with another Court, RTC. Br. 75 for violation of Section 16, R.A. 6425, as amended which also
resulted to his convictions and a jail term of one (1) year for each case, docketed as Criminal Case
Nos. 3711 and 3819.

Accused allegation (sic) that he was illegally arrested because the police harbored a grudge against
him for refusing to continue to be their informer deserves scant consideration. The police has at their
disposable several informants who can help them in gathering information in their area of
jurisdiction. The loss of one (1) informant will not adversely affect their police operations on illegal
drug activities.

Another allegation of the accused that the evidence against him was planted because he came to
know their illegal activities in apprehending drug violators by taking their belongings or their money is
unsubstantiated by evidence and cannot be given any credence.

xxx

If the policemen planted the drugs as alleged by the accused why did he not tell it to his wife or to
any member of his family or to anybody in their community or better still filed (sic) a complaint
against the abusive policemen. But not a whimper of the protest was heard from him belying his
claim of being framed-up.

The court has ruled in a litany of cases that frame-up, like alibi, is viewed with disfavor for it is self-
serving, it can easily be fabricated and is a common standard defense ploy in most prosecution for
violations of the Dangerous Drugs Act. Clear and convincing evidence is required to prove the
defense, which the accused in this case failed to sustain.

What the police operatives did was in accordance with law and absence of any proof of any wrong-
doing or ill-motive, the presumption of regularity in the performance of their official functions prevail.

The elements necessary for the prosecution of illegal sale of drugs have been complied and proven.
The identity of the buyer and seller, the object and consideration and the delivery of the thing sold
and payment thereto.

In this case the buyer was the prosecution witness Tougan who acted as poseur – buyer and the
seller was the herein accused. The object was the shabu sold in consideration of two (2) hundred
pesos which was received by the accused. The prohibited drugs confiscated were presented and
identified by the prosecution witness in Court, which was not objected to by the defense. No doubt
the transaction or sale found in the possession of the accused and they were all presented and
identified by the accused with his initials "JLT."27

xxx

In a prosecution for illegal sale of dangerous drugs, the following must be proven: (1) that the
transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and
(3) that the buyer and seller were identified.28 What is material is the proof that the transaction or
sale actually took place, coupled with the presentation in court of the dangerous drug. The delivery
of the contraband to the poseur-buyer and the receipt of the marked money consummates the buy-
bust transaction between the entrapping officers and the accused.29

An examination of the decision of the trial court reveals that apart from heavily relying on the sole
testimony of Tougan, it used appellant’s admission of his previous convictions, his declaration as a
police informer and the presumption of regularity of Tougan’s performance of his duties as anchor
for finding appellant guilty.

The Court, however, finds such reliance on Tougan’s testimony misplaced. Other than his bare
statements, Tougan’s testimony is unsubstantiated by other proof that the alleged buy-bust
operation, through which appellant was apprehended, took place. In light of appellant’s theory that
he was framed up, it is imperative that the prosecution present more evidence to support Tougan’s
allegations. The prosecution could have easily presented the other police officers, namely Arrellano
and Pontilla, who Tougan claimed were members of his backup team. As it is, the lack of any other
evidence to buttress Tougan’s declaration reduces it into a self-serving assertion. Curiously, the
prosecution never offered rebuttal evidence to refute appellant’s defense of frame-up. This omission
does not hold well for the cause of the prosecution. It creates doubts on whether there has actually
been any buy-bust operation at all.

The Court also agrees with the OSG’s contention that the inconsistencies in Tougan’s testimony on
the matter of the list should not be ignored.30 During trial, when Tougan was asked whether
appellant’s name appeared in the list, he categorically answered in the affirmative. Then again, it
surfaced that this assertion was untruthful as the list he had brought to court did not contain
appellant’s name. The Court believes that Tougan’s lack of candidness on this detail renders the rest
of his testimony doubtful.31

Moreover, the Court finds that the trial court erred in allowing Tougan to use the mantle of regularity
of official functions to prop up his allegations. The presumption of regularity in the performance of
official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond
reasonable doubt. As the Court ruled in People v. Ambrosio:32

The presumption of regularity in the performance of official duty cannot be used as basis for
affirming accused-appellant’s conviction because, [f]irst, the presumption is precisely just that—a
mere presumption. Once challenged by evidence, as in this case, x x x [it] cannot be regarded as
binding truth. Second, the presumption of regularity in the performance of official functions cannot
preponderate over the presumption of innocence that prevails if not overthrown by proof beyond
reasonable doubt.33

While buy-bust operations deserve judicial sanction if carried out with due regard for constitutional
and legal safeguards, it is well to recall that —

x x x by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of
shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be
planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably
shrouds all drug deals, the possibility of abuse is great. Thus, courts have been exhorted to be extra
vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties
for drug offenses. Needless to state, the lower court should have exercised the utmost diligence and
prudence in deliberating upon accused-appellant’s guilt. It should have given more serious
consideration to the pros and cons of the evidence offered by both defense and the State and many
loose ends should have been settled by the trial court in determining the merits of the present case.34
Consequently, courts are required to put the prosecution evidence through the crucible of a severe
testing, and the presumption of innocence requires them to take a more than casual consideration of
every circumstance or doubt favoring the innocence of the accused.35

Significantly, the Court agrees with the OSG’s observation that the identity of the corpus delicti has
not been sufficiently established. Tougan’s testimony does not definitively express that the
confiscated plastic sachets of shabu have been marked/initialed at the scene of the crime, according
to proper procedure. Tougan testified as follows:

PUBLIC PROS. MAJOMOT

Q: After that, what did you do after you recovered or confiscated these plastic sachets from the
accused?

A: After he was arrested, sir, we brought him to the police station.

Q: After that, what happened next?

A: When we reached the police station, sir, he gave his name as Salvador Santos.

Q: What happened to the plastic sachets?

A: I wrote my initials on all the plastic sachets or the evidence confiscated from him, sir, and a
document was prepared for them to be examined at the PNP Crime Laboratory.36

The case of People v. Lim37 specifies that any apprehending team having initial control of illegal
drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same
physically inventoried and photographed in the presence of the accused if there be any, and/or his
representative, who shall be required to sign the copies of the inventory and be given a copy thereof.
The failure of the agents to comply with such a requirement raises doubt whether what was
submitted for laboratory examination and presented in court was the same drug and/or
paraphernalia as that actually recovered from the accused. It negates the presumption that official
duties have been regularly performed by the police officers.

On the point that appellant has previously been charged with and convicted of similar offenses, the
Court believes that the trial court wrongly considered such circumstance for the purpose of showing
that he was likely to commit the crimes charged in the indictment. Evidence of collateral offenses
must not be received as substantive evidence of the offenses on trial.38

Concededly, the evidence of the defense is weak and uncorroborated. This, however, cannot be
1âw phi 1

used to advance the cause of the prosecution as the evidence for the prosecution must stand or fall
on its own weight and cannot be allowed to draw strength from the weakness of the
defense.39 Moreover, when the circumstances are capable of two or more inferences, as in this case,
such that one of which is consistent with the presumption of innocence and the other is compatible
with guilt, the presumption of innocence must prevail and the court must acquit.40 1av vphi1

All told, given the attendant circumstances, the Court entertains serious doubts as to the culpability
of appellant and its mind cannot rest easily upon the certainty of his guilt.

WHEREFORE, the Decision dated 17 November 2004 of the Regional Trial Court of San Mateo,
Rizal, Branch 77 in Criminal Case Nos. 6365 and 6366 is REVERSED and SET ASIDE. Appellant
SALVADOR SANTOS, JR. y SALVADOR is ACQUITTED of the crimes charged on the ground of
reasonable doubt and ordered immediately RELEASED from custody, unless he is being held for
some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this decision forthwith and to
INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually
released from confinement. Costs de officio.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over troubled
waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of
the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the
Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on
the ground of psychological incapacity. Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision
November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated
February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court of
Appeals1 its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .
Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they
went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their
married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There
was no sexual intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to
join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk
during siesta time or by just sleeping on a rocking chair located at the living room. They slept
together in the same room and on the same bed since May 22, 1988 until March 15, 1989.
But during this period, there was no attempt of sexual intercourse between them. [S]he
claims, that she did not: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband which
was also kept confidential. No treatment was given to her. For her husband, he was asked
by the doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show
his penis. She said, that she had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that, according to her, the defendant
married her, a Filipino citizen, to acquire or maintain his residency status here in the country
and to publicly maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled by
reason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the relationship is still very young and
if there is any differences between the two of them, it can still be reconciled and that,
according to him, if either one of them has some incapabilities, there is no certainty that this
will not be cured. He further claims, that if there is any defect, it can be cured by the
intervention of medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with his
wife, she always avoided him and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his wife to have sex with him only
once but he did not continue because she was shaking and she did not like it. So he
stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.
 The defendant insisted that their marriage will remain valid because they are still very young
and there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr.
Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof,
Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no
evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he has
an erection and he found out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr.
Alteza said, that the defendant had only a soft erection which is why his penis is not in its full
length. But, still is capable of further erection, in that with his soft erection, the defendant is
capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the parties
and that the evidence is not fabricated."2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into
by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the
Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera.
Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon
City. Let another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

in affirming the conclusions of the lower court that there was no sexual intercourse between
the parties without making any findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with petitioner is
a psychological incapacity inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and the private respondent to have
sex with each other constitutes psychological incapacity of both.

IV
 in affirming the annulment of the marriage between the parties decreed by the lower court
without fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the
burden of proving the allegations in her complaint; that since there was no independent evidence to
prove the alleged non-coitus between the parties, there remains no other basis for the court's
conclusion except the admission of petitioner; that public policy should aid acts intended to validate
marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial
court on the admissions and confessions of the parties in their pleadings and in the course of the
trial is misplaced since it could have been a product of collusion; and that in actions for annulment of
marriage, the material facts alleged in the complaint shall always be proved.3

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation the material facts alleged in the complaint shall always be
proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to
prevent is annulment of marriage without trial. The assailed decision was not based on such a
judgment on the pleadings. When private respondent testified under oath before the trial court and
was cross-examined by oath before the trial court and was cross-examined by the adverse party,
she thereby presented evidence in form of a testimony. After such evidence was presented, it be
came incumbent upon petitioner to present his side. He admitted that since their marriage on May
22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil
Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of
facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such
annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be annulled.
This only shows that there is no collusion between the parties. When petitioner admitted that he and
his wife (private respondent) have never had sexual contact with each other, he must have been
only telling the truth. We are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice
Minerva Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a stipulation
of facts. The issue of whether or not the appellant is psychologically incapacitated to
discharge a basic marital obligation was resolved upon a review of both the documentary
and testimonial evidence on record. Appellant admitted that he did not have sexual relations
with his wife after almost ten months of cohabitation, and it appears that he is not suffering
from any physical disability. Such abnormal reluctance or unwillingness to consummate his
marriage is strongly indicative of a serious personality disorder which to the mind of this
Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance
to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of
Appeals, G.R. No. 112019, January 4, 1995).4
Petitioner further contends that respondent court erred in holding that the alleged refusal of both the
petitioner and the private respondent to have sex with each other constitutes psychological
incapacity of both. He points out as error the failure of the trial court to make "a categorical finding
about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal
which may not be necessarily due to physchological disorders" because there might have been other
reasons, — i.e., physical disorders, such as aches, pains or other discomforts, — why private
respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a
short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on who
between petitioner and private respondent refuses to have sexual contact with the other. The fact
remains, however, that there has never been coitus between them. At any rate, since the action to
declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated,
the question of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties is
suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with
private respondent; that the reason for private respondent's refusal may not be psychological but
physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or
asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual
intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to
find out or discover what the problem with his wife could be. What he presented in evidence is his
doctor's Medical Report that there is no evidence of his impotency and he is capable of
erection.5 Since it is petitioner's claim that the reason is not psychological but perhaps physical
disorder on the part of private respondent, it became incumbent upon him to prove such a claim.

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.6

Evidently, one of the essential marital obligations under the Family Code is "To procreate children
based on the universal principle that procreation of children through sexual cooperation is the basic
end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or
wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill the above marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not
want carnal intercourse with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988
to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for
her feelings, he deserves to be doubted for not having asserted his right seven though she
balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330).
Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant
did not go to court and seek the declaration of nullity weakens his claim. This case was
instituted by the wife whose normal expectations of her marriage were frustrated by her
 husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to
believe that she would expose her private life to public scrutiny and fabricate testimony
against her husband if it were not necessary to put her life in order and put to rest her marital
status.

We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not phychological
incapacity, and which can be achieved "through proper motivation." After almost ten months
of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual
act with his wife whom he professes to love very dearly, and who has not posed any
insurmountable resistance to his alleged approaches, is indicative of a hopeless situation,
and of a serious personality disorder that constitutes psychological incapacity to discharge
the basic marital covenants within the contemplation of the Family Code.7

While the law provides that the husband and the wife are obliged to live together, observe mutual
love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous,
mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs.
Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an
island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so
because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural
order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift
and a participation in the mystery of creation. It is a function which enlivens the hope of procreation
and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is — a
shared feeling which between husband and wife must be experienced not only by having
spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way
process. An expressive interest in each other's feelings at a time it is needed by the other can go a
long way in deepening the marital relationship. Marriage is definitely not for children but for two
consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a
continuing commitment to compromise, conscious of its value as a sublime social institution.

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.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated
November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack
of merit.

SO ORDERED.

Regalado, Romero, Puno and Mendoza, JJ., concur.

 Republic of the Philippines
SUPREME COURT

SECOND DIVISION

G.R. No. 152577 September 21, 2005

REPUBLIC OF THE PHILIPPINES, Petitioners,

vs.
CRASUS L. IYOY, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of
the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001,1 affirming the
Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077,
dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and Fely Ada
Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines.

The proceedings before the RTC commenced with the filing of a Complaint3 for declaration of nullity
of marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent
Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City.
As a result of their union, they had five children – Crasus, Jr., Daphne, Debbie, Calvert, and Carlos –
who are now all of legal ages. After the celebration of their marriage, respondent Crasus discovered
that Fely was "hot-tempered, a nagger and extravagant." In 1984, Fely left the Philippines for the
United States of America (U.S.A.), leaving all of their five children, the youngest then being only six
years old, to the care of respondent Crasus. Barely a year after Fely left for the U.S.A., respondent
Crasus received a letter from her requesting that he sign the enclosed divorce papers; he
disregarded the said request. Sometime in 1985, respondent Crasus learned, through the letters
sent by Fely to their children, that Fely got married to an American, with whom she eventually had a
child. In 1987, Fely came back to the Philippines with her American family, staying at Cebu Plaza
Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because he was afraid he might
not be able to bear the sorrow and the pain she had caused him. Fely returned to the Philippines
several times more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain
operation of their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued to live with
her American family in New Jersey, U.S.A. She had been openly using the surname of her American
husband in the Philippines and in the U.S.A. For the wedding of Crasus, Jr., Fely herself had
invitations made in which she was named as "Mrs. Fely Ada Micklus." At the time the Complaint was
filed, it had been 13 years since Fely left and abandoned respondent Crasus, and there was no
more possibility of reconciliation between them. Respondent Crasus finally alleged in his Complaint
that Fely’s acts brought danger and dishonor to the family, and clearly demonstrated her
psychological incapacity to perform the essential obligations of marriage. Such incapacity, being
incurable and continuing, constitutes a ground for declaration of nullity of marriage under Article 36,
in relation to Articles 68, 70, and 72, of the Family Code of the Philippines.

Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein that
she was already an American citizen since 1988 and was now married to Stephen Micklus. While
she admitted being previously married to respondent Crasus and having five children with him, Fely
refuted the other allegations made by respondent Crasus in his Complaint. She explained that she
was no more hot-tempered than any normal person, and she may had been indignant at respondent
Crasus on certain occasions but it was because of the latter’s drunkenness, womanizing, and lack of
sincere effort to find employment and to contribute to the maintenance of their household. She could
not have been extravagant since the family hardly had enough money for basic needs. Indeed, Fely
left for abroad for financial reasons as respondent Crasus had no job and what she was then earning
as the sole breadwinner in the Philippines was insufficient to support their family. Although she left
all of her children with respondent Crasus, she continued to provide financial support to them, as
well as, to respondent Crasus. Subsequently, Fely was able to bring her children to the U.S.A.,
except for one, Calvert, who had to stay behind for medical reasons. While she did file for divorce
from respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting
him to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely
married her American husband and acquired American citizenship. She argued that her marriage to
her American husband was legal because now being an American citizen, her status shall be
governed by the law of her present nationality. Fely also pointed out that respondent Crasus himself
was presently living with another woman who bore him a child. She also accused respondent Crasus
of misusing the amount of ₱90,000.00 which she advanced to him to finance the brain operation of
their son, Calvert. On the basis of the foregoing, Fely also prayed that the RTC declare her marriage
to respondent Crasus null and void; and that respondent Crasus be ordered to pay to Fely the
₱90,000.00 she advanced to him, with interest, plus, moral and exemplary damages, attorney’s fees,
and litigation expenses.

After respondent Crasus and Fely had filed their respective Pre-Trial Briefs,5 the RTC afforded both
parties the opportunity to present their evidence. Petitioner Republic participated in the trial through
the Provincial Prosecutor of Cebu.6

Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his
own testimony on 08 September 1997, in which he essentially reiterated the allegations in his
Complaint;7 (2) the Certification, dated 13 April 1989, by the Health Department of Cebu City, on the
recording of the Marriage Contract between respondent Crasus and Fely in the Register of Deeds,
such marriage celebration taking place on 16 December 1961;8 and (3) the invitation to the wedding
of Crasus, Jr., their eldest son, wherein Fely openly used her American husband’s surname,
Micklus.9

Fely’s counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses, namely,
Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular
officers of the Philippines in New York and California, U.S.A, where the said witnesses reside.
Despite the Orders12 and Commissions13 issued by the RTC to the Philippine Consuls of New York
and California, U.S.A., to take the depositions of the witnesses upon written interrogatories, not a
single deposition was ever submitted to the RTC. Taking into account that it had been over a year
since respondent Crasus had presented his evidence and that Fely failed to exert effort to have the
case progress, the RTC issued an Order, dated 05 October 1998,14 considering Fely to have waived
her right to present her evidence. The case was thus deemed submitted for decision.

Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of
respondent Crasus and Fely null and void ab initio, on the basis of the following findings –

The ground bearing defendant’s psychological incapacity deserves a reasonable consideration. As

observed, plaintiff’s testimony is decidedly credible. The Court finds that defendant had indeed
exhibited unmistakable signs of psychological incapacity to comply with her marital duties such as
striving for family unity, observing fidelity, mutual love, respect, help and support. From the evidence
presented, plaintiff adequately established that the defendant practically abandoned him. She
obtained a divorce decree in the United States of America and married another man and has
establish [sic] another family of her own. Plaintiff is in an anomalous situation, wherein he is married
to a wife who is already married to another man in another country.

Defendant’s intolerable traits may not have been apparent or manifest before the marriage, the
FAMILY CODE nonetheless allows the annulment of the marriage provided that these were
eventually manifested after the wedding. It appears to be the case in this instance.

Certainly defendant’s posture being an irresponsible wife erringly reveals her very low regard for that
sacred and inviolable institution of marriage which is the foundation of human society throughout the
civilized world. It is quite evident that the defendant is bereft of the mind, will and heart to comply
with her marital obligations, such incapacity was already there at the time of the marriage in question
is shown by defendant’s own attitude towards her marriage to plaintiff.

In sum, the ground invoked by plaintiff which is defendant’s psychological incapacity to comply with
the essential marital obligations which already existed at the time of the marriage in question has
been satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant
Fely Ada Rosal Iyoy, firmly.

Going over plaintiff’s testimony which is decidedly credible, the Court finds that the defendant had
indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital
obligations. These are her excessive disposition to material things over and above the marital
stability. That such incapacity was already there at the time of the marriage in question is shown by
defendant’s own attitude towards her marriage to plaintiff. And for these reasons there is a legal
ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy null and
void ab initio.15

Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and
evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its Decision,
dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible error therein.
It even offered additional ratiocination for declaring the marriage between respondent Crasus and
Fely null and void, to wit –

Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently
residing in the United States. Plaintiff-appellee categorically stated this as one of his reasons for
seeking the declaration of nullity of their marriage…

Article 26 of the Family Code provides:

"Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

"WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY

CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN
SPOUSE CAPACITATING HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL
LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE LAW."

The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and
unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is
no longer married to the Filipino spouse because he or she has obtained a divorce abroad. In the
case at bench, the defendant has undoubtedly acquired her American husband’s citizenship and
thus has become an alien as well. This Court cannot see why the benefits of Art. 26 aforequoted can
not be extended to a Filipino citizen whose spouse eventually embraces another citizenship and thus
becomes herself an alien.

It would be the height of unfairness if, under these circumstances, plaintiff would still be considered
as married to defendant, given her total incapacity to honor her marital covenants to the former. To
condemn plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to
remain married to a spouse who is incapacitated to discharge essential marital covenants, is verily to
condemn him to a perpetual disadvantage which this Court finds abhorrent and will not countenance.
Justice dictates that plaintiff be given relief by affirming the trial court’s declaration of the nullity of the
marriage of the parties.16

After the Court of Appeals, in a Resolution, dated 08 March 2002,17 denied its Motion for
Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the
following arguments/grounds –

I. Abandonment by and sexual infidelity of respondent’s wife do not per se constitute psychological
incapacity.

II. The Court of Appeals has decided questions of substance not in accord with law and
jurisprudence considering that the Court of Appeals committed serious errors of law in ruling that
Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar.18

In his Comment19 to the Petition, respondent Crasus maintained that Fely’s psychological incapacity
was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family Code
of the Philippines was indeed applicable to the marriage of respondent Crasus and Fely, because
the latter had already become an American citizen. He further questioned the personality of
petitioner Republic, represented by the Office of the Solicitor General, to institute the instant Petition,
because Article 48 of the Family Code of the Philippines authorizes the prosecuting attorney or fiscal
assigned to the trial court, not the Solicitor General, to intervene on behalf of the State, in
proceedings for annulment and declaration of nullity of marriages.

After having reviewed the records of this case and the applicable laws and jurisprudence, this Court
finds the instant Petition to be meritorious.

The totality of evidence presented during trial is insufficient to support the finding of psychological
incapacity of Fely.

Article 36, concededly one of the more controversial provisions of the Family Code of the
Philippines, reads –

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.

Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases,
this Court laid down guidelines for determining its existence.
In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus –

". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that
causes a party to be truly cognitive 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 psychological condition must exist at the time the marriage is celebrated…21

The psychological incapacity must be characterized by –

(a) Gravity – It must be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage;

(b) Juridical Antecedence – It must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and

(c) Incurability – It must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved.22

More definitive guidelines in the interpretation and application of Article 36 of the Family Code of the
Philippines were handed down by this Court in Republic v. Court of Appeals and Molina,23 which,
although quite lengthy, by its significance, deserves to be reproduced below –

(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,
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 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, 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…

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological 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 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 1095.24

A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the
defendant/respondent spouse should be personally examined by a physician or psychologist as a
condition sine qua non for the declaration of nullity of marriage based on psychological incapacity.
Such psychological incapacity, however, must be established by the totality of the evidence
presented during the trial.

Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the
totality of evidence presented by respondent Crasus failed miserably to establish the alleged
psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage null
and void under Article 36 of the Family Code of the Philippines.

The only substantial evidence presented by respondent Crasus before the RTC was his testimony,
which can be easily put into question for being self-serving, in the absence of any other
corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on the
recording with the Register of Deeds of the Marriage Contract between respondent Crasus and Fely,
such marriage being celebrated on 16 December 1961; and (2) the invitation to the wedding of
Crasus, Jr., their eldest son, in which Fely used her American husband’s surname. Even considering
the admissions made by Fely herself in her Answer to respondent Crasus’s Complaint filed with the
RTC, the evidence is not enough to convince this Court that Fely had such a grave mental illness
that prevented her from assuming the essential obligations of marriage.
It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates
downright incapacity or inability to take cognizance of and to assume the basic marital obligations;
not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant
spouse.26 Irreconcilable differences, conflicting personalities, emotional immaturity and
irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not warrant a finding of psychological incapacity under the
said Article.27

As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with a
divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It refers
to a serious psychological illness afflicting a party even before the celebration of marriage. It is a
malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities
of the matrimonial bond one is about to assume."28

The evidence may have proven that Fely committed acts that hurt and embarrassed respondent
Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment of
respondent Crasus; her marriage to an American; and even her flaunting of her American family and
her American surname, may indeed be manifestations of her alleged incapacity to comply with her
marital obligations; nonetheless, the root cause for such was not identified. If the root cause of the
incapacity was not identified, then it cannot be satisfactorily established as a psychological or mental
defect that is serious or grave; neither could it be proven to be in existence at the time of celebration
of the marriage; nor that it is incurable. While the personal examination of Fely by a psychiatrist or
psychologist is no longer mandatory for the declaration of nullity of their marriage under Article 36 of
the Family Code of the Philippines, by virtue of this Court’s ruling in Marcos v. Marcos,29 respondent
Crasus must still have complied with the requirement laid down in Republic v. Court of Appeals and
Molina30 that the root cause of the incapacity be identified as a psychological illness and that its
incapacitating nature be fully explained.

In any case, any doubt shall be resolved in favor of the validity of the marriage.31 No less than the
Constitution of 1987 sets the policy to protect and strengthen the family as the basic social institution
and marriage as the foundation of the family.32

II

Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar.

According to Article 26, paragraph 2 of the Family Code of the Philippines –

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.

As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple
getting married is a Filipino citizen and the other a foreigner at the time the marriage was
celebrated. By its plain and literal interpretation, the said provision cannot be applied to the
case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce,
she was still a Filipino citizen. Although the exact date was not established, Fely herself admitted
in her Answer filed before the RTC that she obtained a divorce from respondent Crasus sometime
after she left for the United States in 1984, after which she married her American husband in 1985.
In the same Answer, she alleged that she had been an American citizen since 1988. At the time she
filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied
in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family
rights and duties, status, condition, and legal capacity, even when she was already living abroad.
Philippine laws, then and even until now, do not allow and recognize divorce between Filipino
spouses. Thus, Fely could not have validly obtained a divorce from respondent Crasus.

III

The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for
annulment and declaration of nullity of marriages.

Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the
prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in
proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor
General had no personality to file the instant Petition on behalf of the State. Article 48 provides –

ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps
to prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed.

That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from
intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No.
292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the
principal law officer and legal defender of the Government.33 His Office is tasked to represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the
Solicitor General shall constitute the law office of the Government and, as such, shall discharge
duties requiring the services of lawyers.34

The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the
State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of evidence;
and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the
land, then his intervention in such proceedings could only serve and contribute to the realization of
such intent, rather than thwart it.

Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend
actions on behalf of the People or the Republic of the Philippines once the case is brought before
this Court or the Court of Appeals.35 While it is the prosecuting attorney or fiscal who actively
participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of
marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to
the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to the
appellate courts when circumstances demand, then it is only reasonable and practical that even
while the proceeding is still being held before the RTC, the Office of the Solicitor General can
already exercise supervision and control over the conduct of the prosecuting attorney or fiscal
therein to better guarantee the protection of the interests of the State.

In fact, this Court had already recognized and affirmed the role of the Solicitor General in several
cases for annulment and declaration of nullity of marriages that were appealed before it,
summarized as follows in the case of Ancheta v. Ancheta36 –

In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the
guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns
the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
State:

(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. [Id., at 213]

This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its pronouncement
in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and
the Solicitor General to appear as counsel for the State…37

Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages,38 which became effective on 15 March 2003, should dispel
any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant
Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to
intervene and take part in the proceedings for annulment and declaration of nullity of marriages
before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are
reproduced below –

Sec. 5. Contents and form of petition. –

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of
its filing and submit to the court proof of such service within the same period.

Sec. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation
with the Office of the Solicitor General, to file their respective memoranda in support of their claims
within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor
General to file its own memorandum if the case is of significant interest to the State. No other
pleadings or papers may be submitted without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with or without the memoranda.

Sec. 19. Decision. –

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies
of the decision personally or by registered mail. If the respondent summoned by publication failed to
appear in the action, the dispositive part of the decision shall be published once in a newspaper of
general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of
judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the
parties, the public prosecutor, or the Solicitor General.

Sec. 20. Appeal. –

(2) Notice of Appeal. – An aggrieved party or the Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or
new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the Court of
Appeals, and sustains the validity and existence of the marriage between respondent Crasus and
Fely. At most, Fely’s abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds
to file for legal separation under Article 55 of the Family Code of the Philippines, but not for
declaration of nullity of marriage under Article 36 of the same Code. While this Court commiserates
with respondent Crasus for being continuously shackled to what is now a hopeless and loveless
marriage, this is one of those situations where neither law nor society can provide the specific
answer to every individual problem.39

WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-
G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch
22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE.

The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting.

SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Associate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

G.R. No. 139676 March 31, 2006

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
NORMA CUISON-MELGAR, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Filed by the Republic of the Philippines (petitioner) is a petition for review on certiorari of the
Decision1 of the Court of Appeals (CA) dated August 11, 1999 in CA-G.R. CV No. 55538, which
affirmed in toto the decision of the Regional Trial Court, Branch 43, Dagupan City (RTC) nullifying
the marriage of respondents Norma Cuison-Melgar (Norma) and Eulogio A. Melgar2 (Eulogio)
pursuant to Article 363 of the Family Code.

The factual background of the case is as follows:

On March 27, 1965, Norma and Eulogio were married before the Catholic Church in Dagupan City.
Their union begot five children, namely, Arneldo, Fermin, Norman, Marion Joy, and Eulogio III. On
August 19, 1996, Norma filed for declaration of nullity of her marriage on the ground of Eulogio’s
psychological incapacity to comply with his essential marital obligations.4 According to Norma, the
manifestations of Eulogio’s psychological incapacity are his immaturity, habitual alcoholism,
unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his family since
December 27, 1985.

Summons, together with a copy of the complaint, was served by personal service on Eulogio on
October 21, 1996 by the sheriff.5 Eulogio failed to file an answer or to enter his appearance within
the reglementary period.

On November 25, 1996, the RTC ordered the Public Prosecutor to conduct an investigation on the
case to determine whether or not there exists collusion between the contending parties.6 On
December 18, 1996, Public Prosecutor Joven M. Maramba submitted his Manifestation to the effect
that no collusion existed between the contending parties.7 On December 19, 1996, the RTC set the
reception of evidence on January 8, 1997.8

On January 8, 1997, upon motion of Norma’s counsel, the RTC allowed the presentation of evidence
before the Clerk of Court.9 Norma testified that since the birth of their firstborn, Eulogio has been a
habitual alcoholic; when he is drunk he (a) sometimes sleeps on the streets, (b) every so often, he
goes to her office, utters unwholesome remarks against her and drags her home, (c) he usually lays
a hand on her, (d) he often scolds their children without justifiable reason; his liquor drinking habit
has brought shame and embarrassment on their family; when she would refuse to give him money
for his compulsive drinking habit, he would beat her up and threaten her; he has not been employed
since he was dismissed from work and he refuses to look for a job; she has been the one supporting
the family, providing for the education and the basic needs of their children out of her salary as a
government employee; on December 27, 1985, because of unbearable jealousy to her male
officemates, Eulogio went to her office, dragged her home and then beat her up; her brothers saw
this, came to her rescue and then told Eulogio to get out of the house; and since then, Eulogio has
not visited or communicated with his family such that reconciliation is very unlikely.10 The Public
Prosecutor thereafter conducted a brief cross-examination of Norma.11
Twelve days later, or on January 20, 1997, the RTC rendered its decision nullifying the marriage of
Norma and Eulogio. The dispositive portion of the decision reads:

WHEREFORE, the Court hereby GRANTS the instant petition for being impressed with merit. As
such, pursuant to Art. 36 of the Family Code of the Philippines, the marriage between Norma L.
Cuison-Melgar and Eulogio A. Melgar, Jr. is declared an ABSOLUTE NULLITY.

The Local Civil Registrar of Dagupan City is therefore ordered to cancel the Marriage Contract of the
parties bearing Registry No. 180 in the Marriage Registry of said Office after payment of the required
fees.

Let a copy of this decision be furnished the following offices: The City Prosecution Office, Dagupan
City, the Solicitor General, and the Local Civil Registrar of Dagupan City.

SO ORDERED.12

The RTC reasoned that:

With the testimony of the petitioner, the Court is convinced that defendant has been incorrigible in
his vices such as habitual alcoholism, subjecting his family to physical maltreatment and many times
caused them to be scandalized, his being indolent by not at least trying to look for a job so that he
could also help his wife in supporting his family, and also his uncalled for display of his jealousy.
These are clear manifestation of his psychological incapacity to perform his marital obligation to his
wife such as showing respect, understanding and love to her. Defendant also became indifferent to
the needs of his own children who really longed for a father who is willing to make the sacrifice in
looking for a job so as to support them. Without any communication to his family since 1985,
certaining [sic] reconciliation and love would be improbable. The attendant circumstances in this
case really point to the fact that defendant was unprepared to comply with his responsibilities as a
good and responsible husband to his wife and a loving father to his children x x x.13

Petitioner, represented by the Office of the Solicitor General (OSG), filed an appeal with the CA,
contending that the evidence presented are not sufficient to declare the marriage void under Article
36 of the Family Code.14

On August 11, 1999, the CA rendered its Decision affirming the decision of the RTC.15 The CA,
quoting extensively Norma’s testimony, ratiocinated:

[I]t has been adequately established that the decree of annulment is proper not simply because of
defendant’s habitual alcoholism but likewise because of other causes amounting to psychological
incapacity as a result of which defendant has failed to perform his obligations under Articles 68-72,
220, 221 and 225 of the Family Code x x x.

Contrary to the submission of the appellant Republic, the grant of annulment is not based merely on
defendant’s habitual alcoholism but also because of his inability to cope with his other essential
marital obligations foremost of which is his obligation to live together with his wife, observe mutual
love, respect, fidelity and render mutual help and support.

For the whole duration of their marriage, that is, the period when they actually lived together as
husband and wide and even thereafter, defendant has miserably failed to perform his obligations for
which reason the plaintiff should not be made to suffer any longer. The contention of the Republic
that plaintiff never showed that she exerted effort to seek medical help for her husband is stretching
the obligations of the plaintiff beyond its limits. To our mind, it is equivalent to saying that plaintiff
deserves to be punished for all the inabilities of defendant to perform his concomitant duties as a
husband and a father all of which inabilities in the first place are in no way attributable to the herein
plaintiff.16

Hence, the present petition for review on certiorari.

In its Petition,17 the OSG poses a sole issue for resolution:

WHETHER OR NOT THE ALLEGED PSYCHOLOGICAL INCAPACITY OF RESPONDENT IS IN

THE NATURE CONTEMPLATED BY ARTICLE 36 OF THE FAMILY CODE.18

The OSG contends that the law does not contemplate mere inability to perform the essential marital
obligations as equivalent to or evidence of psychological incapacity under Article 36 of the Family
Code; that such inability must be due to causes that are psychological in nature; that no psychiatrist
or psychologist testified during the trial that a psychological disorder is the cause of Eulogio's
inability to look for a job, his resulting drunkenness, unbearable jealousy and other disagreeable
behavior; and that the decision failed to state the nature, gravity or seriousness, and incurability of
Eulogio’s alleged psychological incapacity.

In her Comment,19 Norma maintains that her testimony pointing to the facts and circumstances of
Eulogio’s immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness
and indolence are more than enough proof of Eulogio’s psychological incapacity to comply with his
essential marital obligations, which justifies the dissolution of their marriage.

In its Reply,20 the OSG submits that Norma’s comments are irrelevant and not responsive to the
arguments in the petition. Nonetheless, the OSG reiterates that Norma’s evidence fell short of the
requirements of the law since no competent evidence was presented during the trial to prove that
Eulogio’s inability to look for a job, his resulting drunkenness, jealousy and other disagreeable
behavior are manifestations of psychological incapacity under Article 36 of the Family Code.

Prefatorily, it bears stressing that it is the policy of our Constitution to protect and strengthen the
family as the basic autonomous social institution and marriage as the foundation of the family.21 Our
family law is based on the policy that marriage is not a mere contract, but a social institution in which
the state is vitally interested. The State can find no stronger anchor than on good, solid and happy
families. The break up of families weakens our social and moral fabric and, hence, their preservation
is not the concern alone of the family members.22

In this regard, Article 48 of the Family Code mandates:

ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps
to prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment. (Emphasis supplied)

Similarly, Section 6 of Rule 18 of the 1985 Rules of Court,23 the rule then applicable, provides:
Sec. 6. No defaults in actions for annulment of marriage or for legal separation. - If the defendant in
an action for annulment of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there
is no collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated. (Emphasis supplied)

In Republic v. Molina,24 the Court emphasized the role of the prosecuting attorney or fiscal, and the
OSG to appear as counsel for the State in proceedings for annulment and declaration of nullity of
marriages:

(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 1095.25 (Emphasis supplied)

In this case, the State did not actively participate in the prosecution of the case at the trial level.
Other than the Public Prosecutor’s Manifestation26 that no collusion existed between the contending
parties and the brief cross-examination27 which had barely scratched the surface, no pleading,
motion, or position paper was filed by the Public Prosecutor or the OSG. The State should have
been given the opportunity to present controverting evidence before the judgment was
rendered.28 Truly, only the active participation of the Public Prosecutor or the OSG will ensure that
the interest of the State is represented and protected in proceedings for annulment and declaration
of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression
of evidence.29

Be that as it may, the totality of evidence presented by Norma is completely insufficient to sustain a
finding that Eulogio is psychologically incapacitated.

In Santos v. Court of Appeals,30 the Court declared that psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.31 It 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."32 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.33

Subsequently, the Court laid down in Republic of the Philippines v. Molina34 the guidelines in the
interpretation and application of Article 36 of the Family Code, to wit:

(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, 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 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 (Salita v. Magtolis, 233 SCRA 100, 108),
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 characteriological 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 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. x x x.35 (Emphasis supplied)

Later, the Court clarified in Marcos v. Marcos36 that there is no requirement that the
defendant/respondent spouse should be personally examined by a physician or psychologist as a
condition sine qua non for the declaration of nullity of marriage based on psychological incapacity.
Such psychological incapacity, however, must be established by the totality of the evidence
presented during the trial.37
In the present case, Norma alone testified in support of her complaint for declaration of nullity of her
marriage under Article 36 of the Family Code. She failed to establish the fact that at the time they
were married, Eulogio was already suffering from a psychological defect which in fact deprived him
of the ability to assume the essential duties of marriage and its concomitant responsibilities. In fact,
Norma admitted in her testimony that her marital woes and Eulogio’s disagreeable behavior started
only after the birth of their firstborn and when Eulogio lost his job.38

Further, no other evidence was presented to show that Eulogio was not cognizant of the basic
marital obligations as outlined in Articles 68 to 72,39 220,40 221,41 and 22542 of the Family Code. It
was not sufficiently proved that Eulogio was really incapable of fulfilling his duties due to some
incapacity of a psychological nature, and not merely physical. lawphil.net

The Court cannot presume psychological defect from the mere fact of Eulogio’s immaturity, habitual
alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his
family. These circumstances by themselves cannot be equated with psychological incapacity within
the contemplation of the Family Code. It must be shown that these acts are manifestations of a
disordered personality which make Eulogio completely unable to discharge the essential obligations
of the marital state.43

At best, the circumstances relied upon by Norma are grounds for legal separation under Article
5544 of the Family Code. As the Court ruled in Republic of the Philippines v. Molina,45 it is not enough
to prove that a spouse failed to meet his responsibility and duty as a married person, it is essential
that he must be shown to be incapable of doing so due to some psychological, not physical, illness.
There was no proof of a natal or supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates a person from accepting and
complying with the obligations essential to marriage.46

All told, in order that the allegation of psychological incapacity may not be considered a mere
fabrication, evidence other than Norma’s lone testimony should have been adduced. While an actual
medical, psychiatric or psychological examination is not a conditio sine qua non to a finding of
psychological incapacity,47 an expert witness would have strengthened Norma’s claim of Eulogio’s
alleged psychological incapacity. Norma’s omission to present one is fatal to her position. There can
be no conclusion of psychological incapacity where there is absolutely no showing that the "defects"
were already present at the inception of the marriage or that they are incurable.48

The Court commiserates with Norma’s marital predicament, but as a court, even as the highest one,
it can only apply the letter and the spirit of the law; it cannot reinvent or modify it. Unfortunately, law
and jurisprudence are ranged against Norma’s stance. The Court has no choice but to apply them
accordingly, if it must be true to its mission under the rule of law. The Court’s first and foremost duty
is to apply the law no matter how harsh it may be.

WHEREFORE, the present petition is GRANTED. The assailed Decision of the Court of Appeals
dated August 11, 1999 in CA-G.R. CV No. 55538, affirming the Decision of the Regional Trial Court,
Branch 43, Dagupan City in Civil Case No. CV-96-01061-D, dated January 20, 1997,
is REVERSED and SET ASIDE. The complaint of Norma Cuison-Melgar in Civil Case No. CV-96-
01061-D is DISMISSED.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice