G.R. No.

L-12986             March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-
appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the
Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue,
Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station
and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the
cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had
exercised due care in the premises and with respect to the supervision of their employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police
and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main valve of the said
underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores
in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It
burned the truck and the following accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola
and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and
which is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a
rack which according to information gathered in the neighborhood contained cigarettes and matches,
installed between the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the
gasoline station and what the chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This
ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appears
signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness but
respondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now
Rule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-
170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of
the others, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not
testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one
of those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that he
brought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents
of the report, as to which he did not testify, did not thereby become competent evidence. And even if he had
testified, his testimony would still have been objectionable as far as information gathered by him from third persons
was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their
contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public
officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c)
that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p.
398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who
conducted the investigation. Was knowledge of such facts, however, acquired by them through official information?
As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to
as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo
Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have the duty to give such
statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired
by the reporting officers through official information, not having been given by the informants pursuant to any duty to
do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellate
court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the
Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves more than
such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the
Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without
any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power
and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of
the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts
carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his
body and caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some
parts and causing intense pain and wounds that were not completely healed when the case was tried on
June 18, 1947, over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that "where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from defendant's want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San
Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res
ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole
 control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain and stress or there are defects in
their installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng.
Reprint 299, the leading case that established that rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact that the wire snapped suffices to raise a reasonable
presumption of negligence in its installation, care and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court,
but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar.
Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On the
other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting damages to the building
owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82.
The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show
with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents
or employees. Plaintiff applied to this Court for a Writ of Review which was granted, and the case is now
before us for decision.1äwphï1.ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and the
other relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed
on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record
that the filling station and the tank truck were under the control of the defendant and operated by its agents
or employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in
the underground tank attached to the filling station while it was being filled from the tank truck and while both
the tank and the truck were in charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause
of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of defendant
or his servants and the accident is such as in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable evidence, in absence of explanation
by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to
and burned the neighboring houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following
appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a
 very busy business district near the Obrero Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.

Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator
as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his
own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule.
These facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their
face they called for more stringent measures of caution than those which would satisfy the standard of due diligence
under ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without
assistance, was transferring the contents thereof into the underground storage when the fire broke out. He said:
"Before loading the underground tank there were no people, but while the loading was going on, there were people
who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the
underground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, and
while he had his back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intense
heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect to
the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the
fire was caused through the acts of a stranger who, without authority, or permission of answering defendant, passed
through the gasoline station and negligently threw a lighted match in the premises." No evidence on this point was
adduced, but assuming the allegation to be true — certainly any unfavorable inference from the admission may be
taken against Boquiren — it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon
facts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that those
who distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the
effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact
that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or
criminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and
unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's
Gas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on
whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This
question, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court.
These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex
owned the gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX
painted on it; and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license
fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to the effect that he was not
acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the
ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present any
contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have been
one in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposes
of this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate.
This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of
January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while in
the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee,
representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor.
Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and
all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee
without the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31,
1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with
due diligence, in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. The control
was such that the latter was virtually an employee of the former.

Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company took charge of their repair
and maintenance; that an employee of the company supervised the operator and conducted periodic
inspection of the company's gasoline and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that the operator was an agent of the company
and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a controversy as to what they really had intended to enter
into, but the way the contracting parties do or perform their respective obligations stipulated or agreed upon
may be shown and inquired into, and should such performance conflict with the name or title given the
contract by the parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for the negligence of the employees about the station;
but the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted for should be
performed. By reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and methods by which
the work has to be performed, it must be held liable for the negligence of those performing service under its
direction. We think the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v.
Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove
the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground that
Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, was
not yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, the
amount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibiting
unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it
is of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value,
and in this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.

G.R. No. L-48727 September 30, 1982

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSEPH LEONES y DUCUSIN alias JESSIE, defendant-appellant.

GUERRERO, J.:

This is an appeal from the decision of the Court of First Instance of La Union, Branch I, convicting the
accused-appellant, Joseph Leones y Ducusin, of the crime of rape charged in the following information, to
wit:

The undersigned offended party after having been duly sworn to an oath in accordance with
law hereby accuses JOSEPH LEONES y DUCUSIN alias Jessie of the crime of RAPE,
committed as follows:

That on or about the 22nd day of April, 1973, in the Municipality of San Fernando, Province of
La Union, Philippines, and within the jurisdiction of this Honorable Court, said accused
Joseph Leones y Ducusin alias Jessie, by means of violence and use of force compelled the
offended party to swallow tablets and consequently thereafter while she fell into semi-
consciousness the said accused wilfully, unlawfully and feloniously have carnal knowledge
of the complainant Irene Dulay against her will in the house of the accused.

CONTRARY TO LAW, with the aggravating circumstance of abuse of confidence.

San Fernando, La Union, May 8,1973.

(SGD.) IRENE DULAY Offended Party

WITH MY CONFORMITY:

(SGD.) GAUDENCIO DULAY

(Father of the Offended Party)

and sentencing him to suffer the penalty of reclusion perpetua and to pay the cost.

The facts are narrated in the People's brief as follows:

Complainant Irene Dulay was a salesgirl employed in the store of Mr. & Mrs. Pepito Leones at
San Fernando, La Union where she resided.

On April 22, 1973, the complainant who had headache stayed in her room. Earlier that day,
the members of the Leones family, including the accused-appellant Joseph Leones and his
sister Elizabeth, had gone to nearby beach resort for a picnic.

At about past noon the appellant and Elizabeth returned to their house. While there, the
appellant and Elizabeth entered the room where complainant was lying down and forced her
to take three tablets dissolved in a spoon which according to them were aspirin. The
complainant refused to take the tablets but was forced to do so when the appellant held her
mouth while his sister pushed the medicine. Then the appellant and Elizabeth left the room
and after a while the complainant felt dizzy.

Later, the appellant returned to the complainant's room and took of her panty. Then the
appellant went on top of her. The complainant tried to push him but as she was weak and
dizzy, the appellant succeeded in abusing her (pp. 2-8,15-16, tsn, June 27, 1975).
 At about 4:30 P.M. of the same date, Natividad Leones, the stepmother of the appellant, found
the complainant unconscious near her room without any panty on. She was then taken to the
La Union Provincial Hospital by the driver of the Leones family (pp. 3-5, tsn, June 10, 1976).

When admitted to the hospital at about 6:00 P.M. of the same date (April 22, 1973), the
complainant was semiconscious, incoherent and hysterical. She refused to talk and to be
examined by the doctors. She was irritated when approached by a male figure (Exhibit "B",
Records, pp. 280-281). The complainant was first attended to by Dr. Antonino Estioco who
found out that she had vaginal bleeding (Exhibit "2", Records, p. 786). The complainant was
then referred to Dr. Fe Cayao who was informed by Dr. Estioco that she might have been a
victim of rape (p. 28, tsn, May 15, 1974). In the presence of the complainant's father, Dr.
Cayao examined her on April 26, 1973 after which she issued a medical certificate with the
following findings:

1. Presence of erythema of the vestibular portion of external genitalia;

2. Healing lacerations of the hymen at 2 o'clock and 10 o'clock;

3. Easily admit one finger with pain;

4. Unclotted blood at the vaginal cavity;

5. Smear exam for sperm cell-negative;

6. D'plococci-negative

7. Florence test-reagent not available.

(Exhibit "A", Records, p. 3).

Because of the lack of facilities in the hospital, Dr. Cayao was not able to make any
examination to determine whether drug was given to the complainant. (pp. 23- 24, tsn, May
15, 1974. 1

The accused-appellant denied the charge imputed to him, claiming that at the time of the alleged rape
between 2:00 o'clock and 3:00 o'clock p.m. on April 22, 1973, he was at the beach resort with the other
members of the family, namely his sister Elizabeth, his stepmother Natividad Leones, his younger brothers
and sisters named Marivic, Theresa, Carol, Pinky and Bongbong together with other companions, for a
picnic and had lunch thereat, swimming and picture-taking.

As indicated earlier, the trial court, holding that "viewed from all legal aspects of this case, in the light of the
recorded evidence, ... is fully convinced that the crime of rape charged in the criminal complaint was
committed by the accused. The evidence presented by the prosecution is not only clear and convincing but
has established the guilt of the accused beyond reasonable doubt."

From this sentence, the accused appeals to Us, strongly submitting that the trial court erred in finding him
guilty of the crime charged since the evidence presented against him did not prove his guilt beyond
reasonable doubt.

At the outset, We note a number of significant facts from the recorded evidence of the prosecution which
materially and substantially debunks and derails the theory of the Government and correspondingly
impresses considerable merit to the defense.

1. The clinical case record of Irene Dulay's admission and confinement at the Provincial Hospital of La
Union, marked Exhibit "2", contain entries which totally and completely belle the claim of the complainant
that she was raped by the accused in the afternoon of April 22, 1973. The same is reproduced hereunder:

LA UNION PROVINCIAL HOSPITAL

San Fernando, La Union

CLINICAL CASE RECORD

Fi Physi Physi  
s
c cian: cian:
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9
7
3

A   Admit Dr.
d ted Estio
m by: co
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.:
2
7
5

F   Appr  
il oved
e by:
N
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R
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.

    Ped.: City
Free
:

    Surg. Tran
: sient
free:

  Dept. Obs.: Govt

Class .
if. free;

    Med.: Prvt.
free:

    EEN Hos
T: p.
pay:

    C.U. Off.
Hos
p.
pay:

    Dent Off.
al: Prvt.
pay:

Name of Patient: Irene Dulay

Maiden name: ____________________

Residence: San Fernando, La Union

In case of accident or death notify Natividad Leones, (employer)

Charge Hosp. Acct. to: _______________________________________

Age: 16 yrs. Single: Married; Widowed: Nationality Fil.

Admitted: 6:00 P.M. 4-22-1973 Assgd PR: I Bed by Dr. Estioco

Transf: P.M.____19____ to Dept: PR Ward #: ______ Bed # ______

Complaints: Vaginal bleeding

Diagnosis in full:

Healing lacerated wide at 2 o'clock and 10 o'clock hymen.

Res R D Di  
ults:
e i s
c s c
. p h:
: o
s
i
t
i
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:
,

  I   Di  
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p d:
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:

  U  A 3:45
n b P.M
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o
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:

  D  Tr 5-
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e n 73
d sf
: H
o
s
p.

Operation: _____________________________________

Anesthesia: _____________________________________

History written by: APPROVED:

(SGD.) ESTIOCO (unintelligible)

(Resident Physician) Dept. Head

The entry written in the above clinical record when Irene Dulay was admitted under the item "Complaints"
reads: Vaginal Bleeding, and below this entry appears the Diagnosis-Healing lacerated wide at 2 o'clock and
10 o'clock hymen. Assuming that the victim was raped between 2 and 3 o'clock p.m., April 22, 1973 (the
same day she was admitted in the hospital), then the lacerations of the hymen at 2 o'clock and 10 o'clock
would not have been described and indicated to be Healing in the clinical case record. It would be
described as "laceration fresh" or by similar words like "bloody or new lacerations." There is no instant
formula, technique or process known to medical science or by human experience to hasten the healing of a
lacerated hymen within three (3) hours or so after defloration.
Citing from the book, Legal Medicine by Pedro P. Solis, M.D., Ll B Medico Legal Officer, National Bureau of
Investigation, Department (now Ministry) of Justice, We have the following comment on:

Healing time of laceration of the hymen:

Superficial laceration of the hymen may heal in two or three days.

More extensive tear may require longer time, usually seven to ten days.

Complicated types and those with intervening infection may cause delay in the healing depending upon the
extent of the involvement of the surrounding tissue and the degree of infection. Complicated laceration may
even require surgical intervention." (p. 302, Emphasis supplied.)

Since there was found laceration, wide, at 2 o'clock and 10 o'clock of the hymen which was then already
healing on April 22, 1973, it follows reasonably that the defloration occurred several days before, which may
have happened when Irene Dulay took a week-long vacation to her hometown in Pugo, La Union (tsn, p. 10,
June 27, 1975) and there is evidence that she had a suitor named Ferdinand Sarmiento who is from nearby
Agoo, La Union. And when she returned to the house of her employer in San Fernando, La Union, she had
already chest and stomach pains and a headache.

The written entries in the clinical case record, Exh. "2", showing the date of her admission in the hospital on
April 22, 1973, her complaint of vaginal bleeding and the diagnosis of "Healing lacerated wide at 2 o'clock
and 10 o'clock hymen" are prima facie evidence of the facts therein stated, the said entries having been
made in official records by a public officer of the Philippines in the performance of his duty especially
enjoined by law, which is that of a physician in a government hospital. (Rule 130, See. 38, Rules of Court). In
the case at bar, Dr. Antonino Estioco was the admitting physician but unfortunately, he was not presented
as a witness for the government.

In connection with Exhibit "2", there is one piece of damaging evidence which not only derogates the theory
of the prosecution but also cannot be explained by the government, and that is the frank testimony of Dr. Fe
Cayao herself, thus:

Q — The question is: did you not discover through reading the clinical history
of the patient that the woman was not complaining of alleged rape?

A — It was not indicated here that she was complaining of an alleged rape.

Q — There was not a single word in the clinical record of the victim that she
was the victim of an alleged rape, is that correct?

A — Yes. (tsn, pp. 27-28, May 15,1974)

2. From the same clinical case record, Exhibit "2", it appears clearly that the alleged victim, Irene Dulay, was
having her menstrual period when she was supposedly raped for the Complaint indicated that she had
vaginal bleeding. She herself admitted in her testimony that on April 22, 1973, she was having her
menstruation. (tsn, p. 9, June 27, 1975).

It is quite abnormal and unnatural, almost unheard of in human experience and behavior that a man would
have sexual intercourse with a woman then having her menstrual period, as was the admitted condition of
the complainant when she was allegedly abused by the accused. And because of this universal abhorrence,
taboo and distaste to have sexual contact with a menstruating female and this is so however passionate
and lustful the man way be unless he is depraved or demented. We cannot believe that the accused-
appellant, a young fourth year college student of civil engineering studying in Baguio City, would break or
violate such a taboo by drugging the complainant girl with the help of her sister and afterwards have sex
relations with her in her menstrual condition.

3. When the complainant was investigated by the police, she declared in her affidavit, Exhibit "5", the
following answers to these questions:

5. Q — Why are you in this office?

A — I came here with the purpose of giving my voluntary statement in

connection with the incident that happened to me in the house of my employer
and I want to file a formal complaint against the persons who offended me, sir.

6. Q — Who are those persons who offended you, if you know?

 A — They are Joseph alias Jessie and Elizabeth both surnamed Leones, the
son and daughter of Mr. Pepito Leones, my employer.

7. Q — When did that incident happened?

A — At about between the hours of 2:00 & 3:00 in the afternoon of April 22,
1973, sir.

8. Q — What did these Joseph and Elizabeth do against you?

A — Because I was suffering headache at that time because it was the first day
of my menstrual period, they were inviting me to go with them to Wallace and I
told them that I have a headache then later they forced me to take in aspirin
tablets, three (3) tablets then after a few seconds, I begun to feel dizzy and
halfconscious.

9. Q — Do you know if what you have forcely taken and given by the two,
Joseph and Elizabeth were really aspirin tablets?

A — I do not know, but they were white in color similar to aspirin tablets but
after I have taken them I felt dizzy then unconscious.

10. Q — In what manner did Joseph Leones and Elizabeth Leones force you to
take in the tablets?

A — At about that time and date I mentioned above, I was then lying on my bed
in my room at their residence, then Jessie and Elizabeth came in. Joseph alias
Jessie took hold of my throat with one hand and pressed it hard that I was
almost choked up, his other hand held my both cheeks his thumb and
forefinger pressed hard to forcely. open my mouth while Elizabeth held a
spoon containing the three (3) tablets then I was told by them to swallow the
pills. I could not resist so I swallowed the pills then later I felt dizzy as if the
world was turning around.

Thus, it would appear from the above recorded evidence that the accused Joseph Leones and his sister
Elizabeth, helped and conspired with each other in the commission of the crime of rape against the
offended party, an assumption that is hardly believable for it would lead to the absurb conclusions that
Elizabeth was a principal by cooperation and that both Joseph and Elizabeth had planned the rape for they
conveniently provided themselves beforehand with the necessary drug.

It further appears in the record that the Philippine Constabulary in La Union did not believe the existence of
rape when Felicidad Boado reported the incident (tsn, p. 25, June 18, 1974), which disbelief may reasonably
be attributed to the unnatural and unusual version of the complainant that another of her own sex had
conspired and confabulated in the commission of the alleged defilement.

4. The complainant, Irene Dulay, had declared in her affidavit, Exhibit " 5 ", in answer to question No. 9 that
after she had taken the tablets that were white in color similar to aspirin tablets, she felt dizzy, then
unconscious. In her testimony at the trial, however, she testified that after she had taken the tablets, she felt
dizzy and felt the removal of her panty and that when he went on top of her, he inserted his private parts
into her private parts (tsn, pp. 6-7, June 27, 1975), but on cross-exmination, she said that she became
unconscious when Joseph Leones was already on top of her (tsn, p. 22, June 27, 1975). If she became
unconscious when Leones was on top of her and yet she felt pain when he placed his private parts into
hers, then this is incredible for how could she have known what was done to her and how she felt when she
was already unconscious as admitted by her.

5. The record is replete with testimonies of the very witnesses of the prosecution itself revealing the
irrational, if not immoral behavior and conduct of the complainant which cuts deep into the morality,
character and credibility of the complaining witness. To cite a few of her immoral acts, when the police
came to visit her, Irene Dulay took hold of the penis, of the policeman (Testimony of Felicidad Boado, tsn, p.
20, June 18, 1974). Whenever she sees a man, she goes after him and takes hold of his hand and places it in
her private part (Testimony of Leonida Dulay, p. 5, tsn, Sept. 20, 1974). Sometimes she is seated, sometimes
she is standing and there are moments that she goes around and whenever she sees a man, she calls for
him and says "darling Jessie" (Cross-examination of Leonida Dulay, tsn, p. 14, Sept. 20, 1974). She even
said "have sexual intercourse with me," making particular mention of the person who wanted to do that to
her as Joseph Leones (Cross-examination of Leonida Dulay, tsn, pp. 27-28, Sept. 20, 1974). There are times
when she gets a pillow and imitates the sexual act (tsn, p. 29, Sept. 20, 1974). There are moments when she
takes hold of a pillow, embraces it, and makes movements imitating the sexual act (tsn, Testimony of
Leonida Dulay, p. 5, Sept. 20, 1974).
6. The circumstances of persons, time and place attendant in the commission of the crime do not build up
the case for the People. On the contrary, We find facts and circumstances which contradict and contravene
the theory of the prosecution, rendering it highly improbable and questionable. Thus, the room of the
complainant where the alleged rape was committed was at the ground floor of the house where her
employer lives with his family and maintains a canteen at the premises, the room being very near the
washing place and had a door with only wooden jalousies. There were several persons present in the house
at the time of the alleged rape and they were Evelyn Estigoy, the secretary of Natividad Leones, the cook
Inocencia Gangad and her daughter, Mantes. With the presence of these persons at the premises and the
complainant's room was not secluded nor completely closed, the opportunity to commit the rape is hardly
present. More than that the alleged time being between 2:00 o'clock and 3:00 o'clock in the afternoon and
with the supposed attendance of the perpetrator's elder sister, Elizabeth the element of secrecy had been
totally ignored or disregarded which is quite unbelievable and incredible in such a crime as rape.

Indeed, rape is a most detestable crime. It should be severely and impartially punished. But a rape charge is
easy to make, hard to prove and harder to defend by the party accused, though innocent. Experience has
shown that unfounded charges of rape have frequently been preferred by women actuated of rape have
frequently been preferred by women actuated by some sinister, ulterior or undisclosed motive. Convictions
for such crime should not be sustained without clear and convincing proof of guilt. On more than one
occasion, it has been pointed out that in crimes against chastity, the testimony of the injured woman should
not be received with precipitate credulity. When the conviction depends on any vital point upon her
uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from
suspicion. A little insight into human nature is of utmost value in judging matters of this kind. (Cornelio
Flores, 26 Phil. 262, 268; Ignacio Landicho, 8 ACR 580; Rafael Lacson, CA 53 O.G. 1823; Francisco Salvador,
CA 52 O.G. 7290; Lago, CA 45 O.G. 1356; Barbo, 56 SCRA 459; Bay, 27 Phil. 495; Pantaleon Ramos, 35 Phil.
671; Brocal, CA 36 O.G. 857; Topacio, CA 36 O.G. 1358; Fernando Fausto, 51 Phil. 852; cited in Aquino, The
Revised Penal Code, 1977 Ed., Vol. III, pp. 1679-1680).

After carefully analyzing and weighing the evidence presented by the prosecution in the light of the legal
principles above outlined and now well-established in Our jurisprudence and guided by a little insight into
human nature, We are persuaded and convinced that the guilt of the accused has not been proven beyond
reasonable doubt. That moral certainty or degree of proof which produces conviction in an unprejudiced
mind (Rule 133, Section 2, Rules of Court) has not been established by the prosecution. The constitutional
mandate that the accused is presumed innocent must prevail and, therefore, the accused-appellant, Joseph
Leones, is entitled to an acquittal.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction is hereby REVERSED and the
accused Joseph Leones y Ducusin is ACQUITTED of the crime charged.

Costs de oficio.

SO ORDERED.

G.R. No. 173824             August 28, 2008

PETER TARAPEN y CHONGOY, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J.:

Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR No. 26636, dated 31 January 2006, which
affirmed with modification the Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting petitioner
Peter Chongoy Tarapen of the crime of Homicide.

On 9 June 2000, petitioner was charged before the RTC of Baguio City with Frustrated Homicide for attacking and
assaulting James Lacbao Pangoden.3 The day after, the victim died from the injuries he sustained. As a consequence, an
amended information was filed on 13 June 2000 charging petitioner with Homicide allegedly committed as follows:

That on or about the 8th day of June, 2000, in the City of Baguio, Philippines, and within the jurisdiction of the
Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and
feloniously attack, and assault JAMES LACBAO PANGODEN, by hitting his head twice with a steel shovel,
thereby inflicting upon the latter: Cardio-respiratory arrest secondary to cranio-cerebral injury, which directly
caused his death.4

The case was raffled to Branch 3. When arraigned on 15 June 2000, petitioner, with the assistance of counsel de oficio,
pleaded not guilty to the crime charged.5

On 10 October 2000, the pre-trial conference of the case was terminated with the trial court issuing its pre-trial order.6
The prosecution presented the following witnesses, namely: (1) Patricia S. Pangoden7; (2) Molly J. Linglingen8; (3)
Silmana Linglingen9; (4) Virginia Costales10; (5) Dr. Lindo Mensalvas11; (6) Dr. Rizal Leo Cala12; and (7) Senior Police
Officer (SPO) 2 Juanito Meneses II.13

The collective testimonies of the witnesses revealed:

At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven by Jimmy Pugoy arrived at Zandueta St.,
Baguio City, to collect garbage. He was accompanied by petitioner and Edmond Ferrer. The garbage truck came from
lower Zandueta St. and proceeded to upper Zandueta St. Upon reaching the Hilltop Market, the truck turned around.
During this time, vendors, including the victim James Pangoden, Molly J. Linglingen, Silmana Linglingen and Virginia
Costales were peddling their wares along said street. Petitioner alighted from the truck and signaled to the driver to move
slowly. Despite guiding the truck, said vehicle ran over the eggplants being sold by Virginia Costales. Petitioner picked up
the vegetables and threw them towards the place where James was. This angered James because the flowers he was
selling were soiled. An exchange of words ensued between petitioner and James.14 Petitioner went to the back of the
dump truck and got a shovel. He then moved in front of the truck where James was. While James was facing downwards,
petitioner, coming from behind and holding the shovel with two hands, struck James on the head with the same, causing
him to fall to the ground in a squatting position. As soon as James raised his head, petitioner hit the former’s head again
with the shovel.15 Petitioner then ran away. James was brought to the Baguio General Hospital & Medical Center
(BGHMC) in a taxi.

The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her husband in the Emergency Room. Dr. Rizal
Leo Cala refused to operate on her husband, saying that it was already hopeless. She then requested for the transfer of
her husband to the Saint Louis University (SLU) Hospital. The request was approved, and her husband was transferred to
SLU Hospital at 1:30 p.m. James was operated on, and Patricia was told that her husband had no more chance to live.
She was advised to bring home James; otherwise, they would just be spending so much. Patricia brought her husband to
his hometown in Namatugan, Sudipen, La Union, where he expired on 10 June 2000.16

Patricia S. Pangoden testified on the events that happened to her husband from the time he was bought to the hospital
until the time he died. She also testified on the expenses she incurred as a result of the incident.17

Molly J. Linglingen and Silmana Linglingen, mother and daughter, and co-vendors of James at Zandueta St., testified that
they saw petitioner get a shovel from the rear of the garbage truck, approach James from behind, and hit him with it twice
on the head.

Virginia Costales recounted the events prior to her seeing James already slumped on the ground. She narrated that when
the garbage truck was going down Zandueta St., petitioner got off from the truck and guided it. The truck ran over the
eggplants she was selling. Petitioner picked them up and threw them to where James was. James, she said, got angry
because the flowers he was selling were soiled. Petitioner and James exchanged words. While the two were exchanging
words, she transferred her sack of eggplants to a nearby place. It was then that she heard people shouting. When she
turned around, she saw James already slumped on the ground oozing with blood.

Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital and BGHMC, respectively, attended to the
victim. They respectively issued a medico-legal certificate containing the injuries sustained by the victim.18

SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio City, was the investigator to whom the case
of petitioner was turned over. At around 10:00 a.m. of 8 June 2000, the Division Chief of the General Services Office of
Baguio City turned the petitioner over to him. SPO2 Meneses disclosed that petitioner admitted to having inflicted injuries
on the victim. The police officer disclosed that he did not notice any injury on Peter’s body or face. He added that Peter
did not request any medical treatment that morning. He brought Peter to the BGHMC for possible identification, but the
victim was still unconscious. Upon going back to the police station, he took the statement of the victim’s wife. He likewise
identified the steel shovel19 allegedly used in killing the victim.

The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-markings which the trial court admitted.20

For the defense, the following took the witness stand: (1) Jimmy Pugoy,21 (2) petitioner Peter Tarapen,22 (3) Edmond
Ferrer,23 and (4) Dr. Maryjane Tipayno.24

The version of the defense as culled from these witnesses is as follows:

Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage collectors employed by the General Services
Office of the City of Baguio. At around 3:00 a.m. of 8 June 2000, they started collecting garbage. At around 7:00 a.m.,
they arrived at Zandueta St. Half of said street was almost occupied by vendors who were selling various goods. In order
to collect garbage piled on said street, the truck driven by Jimmy Pugoy had to go up the street then go down. While going
down the street, Pugoy kept on honking the truck’s horn, causing the vendors selling near the garbage pile to move away,
but some of their goods were left behind. Ferrer alighted and started filling up the garbage basket with the use of a shovel.
Peter saw a sack of eggplants pinned under the truck being removed by its owner. Peter helped the old woman carry the
sack to the side of the road when, all of a sudden, James punched him hard on the right ear, causing him to fall and roll
down the street. Peter ended up sitting on the ground. As he was getting up with his hands raised, James punched him
again. Peter protested, saying he did not do anything wrong. James answered: "You people from the government are
show-off[s]." Peter, still dizzy while getting up and still with hands raised, was kicked by James on the left side of the body.
Peter fell on the road and rolled anew.25 Feeling very dizzy, Peter tried to pick up something to throw at James to stop
him, because he (Peter) thought James would kill him. At this moment, Edmond was coming to the aid of Peter, who was
in front of the truck. Edmond carried with him the shovel he used to collect garbage. Edmond tried to help Peter stand. He
put down the shovel on the ground. While in a sitting position, Peter was able to get hold of the shovel and swing it, hitting
James who was approaching him and about to strike with a clenched fist. With the help of the shovel, Peter stood up and
tried to leave. When James followed Peter, the latter hit him again with the shovel. Peter saw James boarding a taxi. After
feeling a little better, Peter walked to his office and reported the matter to his supervisor.

Peter, accompanied by his supervisor, voluntarily surrendered to the police authorities. Per his request, he was brought to
the hospital where he met James’s wife who hit him on the back. To avoid trouble, he was brought to the City Jail. Upon
posting bail, he went to the hospital for treatment.

Jimmy Pugoy testified on what he allegedly saw that fateful morning. He recounted that while he was maneuvering the
garbage truck he was driving at Zandueta St., he saw petitioner Peter Tarapen go down the truck and help an old woman,
who was in front of the truck, carry a sack of eggplants. At that moment, a person (James) went near Peter and suddenly
punched him on the face, causing him to fall and roll down the street. When Peter stood up with his hands raised, James
punched him again on the face, making the latter fall and roll again. Peter stood up a second time with his hands up. This
time, he said, James delivered a flying kick, which hit Peter on the stomach. Peter fell and rolled once more. After this,
Jimmy no longer saw what happened, because the people had gathered, and he parked the truck. After parking the
vehicle, what he saw was a man lying on the ground. He went back to the office and gave a report.

Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was with Jimmy Pugoy and Peter Tarapen at
Zandueta St. collecting garbage. He was with Peter hanging at the back of the truck. When the vehicle stopped, Peter
alighted and went in front of the vehicle. Jimmy also went down, taking with him the shovel and the garbage basket. While
Peter was settling some things in front, he placed the garbage inside the basket. After filling up the basket and before he
could load it into the truck, he heard people shouting in front of the vehicle. As there was a commotion, he proceeded to
the front of the vehicle carrying the shovel he was using. He saw Peter sitting on the ground shaking his head. He went
near Peter, put down the shovel and tried to help him stand up. A person approached and was about to hit Peter, when
the latter got hold of the shovel, swung it and hit this person. The person remained standing. Peter was able to stand and
was turning around to leave, but the person whom he hit with the shovel was about to follow him in order to punch him.
Peter hit this person one more time, causing the latter to fall down. Seeing Peter leave, he also left.

Petitioner testified that at the time the incident subject of this case happened, he was in Zandueta St. to collect garbage.
He was riding the garbage truck driven by Jimmy Pugoy. Since the driver was continuously blowing the horn of the
vehicle, he went down the truck and saw a sack of eggplants under the vehicle. The owner of the sack of eggplants
approached him and asked him to help her. He helped the old woman remove the sack under the truck and carry it to the
side of the road. After that, he said someone (James) punched him at the right side of the head, which caused him to fall
and sit on the road. As he was getting up with his hands raised, James said, "Nalastog kayo nga taga-gobierno," and then
punched him for the second time. He was a little dizzy and was again getting up when he was kicked on the left side of his
body. Feeling very dizzy, he tried to pick up something to throw at James. While sitting, he got hold of a shovel which he
swung, hitting James. Peter said he got up to run away, but James followed him. It was then that Peter hit him again with
the shovel. He went to their office and he was accompanied by his supervisor in surrendering to the police. He added that
he asked the policemen to bring him to the hospital, because his ear was aching. It was on 16 July 2000 that he was able
to have a medical examination of his ears.

Dr. Maryjane Tipayno, physician at the BGHMC, testified that she performed an audio logic test on petitioner on 16 June
2000. She found out that petitioner had mild hearing loss on the left ear and severe hearing loss on the right ear.26 She
said that the hearing condition of petitioner could not have been self-inflicted. She explained that the hearing loss in both
ears could have started years before. She added that it was Dr. Vinluan who interviewed the petitioner, and that it was
petitioner who told him that the hearing loss in his right ear was due to a blunt trauma.

After formally offering Exhibits "1" and "2" and with the admission thereof by the trial court, the defense rested its case.27

As rebuttal witnesses, the prosecution presented Molly Linglingen, who said that petitioner was standing up when he hit
James twice on the head with a shovel. He explained that James was standing with his back turned, when Peter came
from behind and hit him.28

On 20 June 2002, the trial court convicted petitioner of Homicide in a decision the dispositive portion of which reads:

WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond reasonable doubt for the crime of
Homicide and he is hereby sentenced to suffer the penalty of imprisonment at the National Penitentiary,
Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20) Years as Maximum. Peter Tarapen shall
also indemnify private complainant Patricia Pangoden the following amounts: One Hundred Ninety Five Thousand
Eighty Pesos and 05/100 (P195,080.05), representing the expenses for hospitalization, funeral and burial; Moral
Damages to Patricia Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00) and Death
Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of Earning Capacity in the amount of Three Million
One Hundred Thirty Five Thousand Seven Hundred Twenty Pesos (P3,680,800.05), plus costs of suit against the
accused.29

The trial court gave credence to the testimonies of the prosecution witnesses Molly J. Linglingen, Silmana Linglingen and
Virginia Costales as against the testimonies of defense witnesses Jimmy Pugoy, petitioner Peter Tarapen and Edmond
Ferrer. The trial court found the prosecution’s version of the incident credible. The trial court said Virginia Costales saw
the first part of the incident, which was the heated argument between petitioner and the victim involving the victim’s soiled
goods, while Molly J. Linglingen and Silmana Linglingen witnessed the second part of the incident when petitioner went to
the back portion of the garbage truck and got a shovel with which he hit the victim from the back, twice on the head,
resulting in his death. Having had the opportunity to observe them, it was convinced that they were telling the truth vis-à-
vis the defense witnesses who were lying, as can be seen from their hesitant answers and evasive looks when they
testified for the petitioner who was a co-employee.

The trial court likewise did not appreciate self-defense in favor of petitioner, who struck the unarmed victim from the back,
twice on the head.

On 8 July 2002, petitioner filed a Motion for Reconsideration,30 which the trial court denied on 16 July 2002.31 On 23 July
2002, petitioner filed a Notice of Appeal.32 In an Order33 dated 29 July 2002, the trial court, finding the notice of appeal to
have been seasonably filed, forwarded the records of the case to the Court of Appeals.

On 31 January 2006, the Court of Appeals rendered a decision, affirming with modification the decision of the trial court
convicting petitioner Peter Chongoy Tarapen of the crime of Homicide, the decretal portion reading:

WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002 of Branch 3 of the Regional trial
Court of Baguio City in Criminal Case No. 17792-R finding accused-appellant Peter Tarapen y Chongoy guilty
beyond reasonable doubt of the crime of homicide is AFFIRMED with modification. Accused-appellant is
sentenced to suffer the penalty of eight (8) years of prision mayor, AS MINIMUM, to fourteen (14) years
of reclusion temporal, AS MAXIMUM, and ordered to pay the heirs of the victim James Lacbao Pangoden the
following amounts: P51,549.25 in actual damages, P50,000.00 as moral damages, P50,000.00 as civil indemnity
and the sum of P1,960,200.00 representing lost earnings.34

On 8 March 2006, petitioner filed a Motion for Reconsideration,35 on which the Office of the Solicitor General (OSG) filed
its Comment.36 On 6 July 2006, the Court of Appeals denied said motion.37

On 31 August 2006, petitioner, via registered mail, filed a petition for review with this Court, seeking the reversal of the
decision of the Court of Appeals.38

In our Resolution39 dated 2 October 2006, respondent People of the Philippines, through the OSG, was required to file its
Comment on the petition. After three motions for extension to file comment on the petition, which were granted by this
Court, the OSG filed its Comment on 5 February 2007.40 On 12 March 2007, petitioner was required to file a Reply to the
Comment, which he did on 11 December 2007.41

On 18 February 2008, the Court resolved to give due course to the petition for review on certiorari and required the parties
to submit their respective memoranda within thirty (30) days from notice. Petitioner and respondent filed their respective
memoranda on 2 May 2008 and 10 April 2008.42

Petitioner assails his conviction, arguing that both trial courts:

I. Erred in giving credence to the prosecution witnesses, despite the grave inconsistencies in their testimonies and
not considering the testimonies of the witnesses for the defense showing manifest bias against the accused.

II. Erred in not acquitting the accused when the defense had sufficiently proved the existence of facts proving that
indeed the accused was defending himself from James Pangoden.

III. Erred in not acquitting the accused based on reasonable doubt.43

On the first assigned error, petitioner contends that the testimonies of Molly and Silmana Linglingen that there was no
prior quarrel or exchange of words between petitioner and James before the former hit the latter with a shovel, are
contrary to human experience, because petitioner could not have taken the life of James, whom he did not personally
know, for no reason at all.

This contention is untenable.

A review of the testimonies of both Molly and Silmana Linglingen shows they never said that petitioner and the victim did
not have any prior quarrel or exchange of words before Peter hit James with the shovel. What they said was that they
never witnessed any quarrel or exchange of words between Peter and James. They, however, declared in unison that
they saw petitioner get a shovel from the back of the garbage truck and, coming from behind, twice struck James on the
head with it. Both Molly and Silmana Linglingen never witnessed the events prior to Peter’s act of getting the shovel. This
void was substantially filled up by the testimony of Virginia Costales, who actually witnessed the altercation between the
petitioner and the victim. Through the testimony of Mrs. Costales, it became clear why petitioner got the shovel, which he
used in striking James twice on the head. By combining the testimonies of the three ladies, a picture of the incident has
been wholly painted. The rage that Peter had in him was brought about by his squabble with James. The defense cannot,
therefore, claim that Peter took the life of James for no reason at all.

Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus, unreliable, because they were town mates and
co-vendors of the victim. The fact that these two witnesses were the victim’s town mates and co-vendors did not
necessarily make them biased witnesses. It is well-settled that the mere relationship of a witness to the victim does not
impair the witness’ credibility. On the contrary, a witness’ relationship to a victim of a crime would even make his or her
testimony more credible, as it would be unnatural for a relative, or a friend as in this case, who is interested in vindicating
the crime, to accuse somebody other than the real culprit.44 A witness is said to be biased when his relation to the cause
or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or to
pervert the truth, or to state what is false.45 To warrant rejection of the testimony of a relative or friend, it must be clearly
shown that, independently of the relationship, the testimony was inherently improbable or defective, or that improper or
evil motives had moved the witness to incriminate the accused falsely.46

The friendship of Molly and Silmana Linglingen with the victim, per se, did not impair their credibility. We, like both lower
courts, are convinced that they were telling the truth. Moreover, the defense failed to show any evidence that prosecution
witnesses Molly and Silmana Linglingen had improper or evil motives to testify falsely against petitioner. This being the
case, their testimonies are entitled to full faith and credit.

The defense accuses the prosecution witnesses of deliberately suppressing material evidence favorable to the petitioner.
It thus argues that it may be safely presumed that such evidence, having been willfully suppressed, would be adverse if
produced.

We do not find any suppression of evidence by the prosecution. The defense failed to specify which evidence was
suppressed. It simply made a general statement that the prosecution witnesses allegedly did not tell the truth and thus
deliberately suppressed material evidence favorable to the petitioner. The adverse presumption of suppression of
evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely
corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a
privilege.47 In the case at bar, the prosecution witnesses who allegedly suppressed material evidence were presented in
court and were cross-examined by the defense counsel. How then can the defense claim there was suppression? The
defense counsel was able to question these witnesses, but failed to elicit the answer he wanted or needed to hear for the
exoneration of his client.

The defense attacks the credibility of Virginia Costales by pointing out that her testimony in court, that she did not see
petitioner and the victim engage in a fistfight, contradicts her declaration in her sworn statement that that two engaged in a
fistfight.

Such inconsistency will not discredit her. It is settled that certain discrepancies between declarations made in an affidavit
and those made on the witness stand seldom could discredit the declarant. Sworn statements, being taken ex parte, are
almost always incomplete and often inaccurate for various reasons, sometimes from partial suggestion or for want of
suggestion and inquiries. They are generally inferior to the testimony of the witness given in open court. Our case law is
unequivocal in saying that the testimony of a witness prevails over an affidavit. In short, affidavits are generally
subordinated in importance to open-court declarations; or, more bluntly stated, whenever there is inconsistency between
an affidavit and the testimony of a witness in court, the testimony commands greater weight.48 The Court has consistently
ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn statement before
the investigators are not fatal defects that would justify the reversal of a judgment of conviction.49 In this case, when Mrs.
Costales was confronted with this contradiction, she explained that she never told the police that the petitioner and the
victim had a fistfight. What she said was they had a quarrel; that is, they faced each other and exchanged words.

The defense tries to destroy the version of Molly and Silmana Linglingen that the victim was hit from behind by arguing
that same is not corroborated by medical findings. Molly and Silmana Linglingen’s claim that James was hit on the right
side of the head was, according to the defense, negated by the findings of Dr. Mensalvas that James suffered injuries on
the "left frontoparietal and left frontotemporo parietal" areas of his head. The findings of Dr. Mensalvas mean that James
was facing Peter when hit by the shovel contrary to the prosecution’s claim that James was hit by Peter from behind.

We do not agree.

The defense relies too much on the findings made by Dr. Lindo Mensalvas and completely omits the findings made by Dr.
Rizal Leo Cala. It must not be forgotten that the victim was brought to two hospitals where the attending doctors issued
separate medico-legal certificates. The medico-legal certificate50 issued by Dr. Cala of the BGHMC was marked Exh. "D."
The one issued by Dr. Mensalvas was marked Exh. "C."

On the witness stand, Dr. Cala read his findings as follows:

"Skull Fracture" meaning there is a break in the skull bone, "Linear" which is a straight line fracture, "parietal" area
on the right side of the head, then we have "Epidural hematoma" it is a blood clot at the right side of the head.51

When cross-examined, he explained his findings as follows:

q Both injuries you found were on the front parietal area?

a Yes, Sir.

q Will you please demonstrate to us?

a (Witness demonstrating by pointing to the right side of his head.)

q Doctor, while you were demonstrating, the linear fracture, is it perpendicular to the head?
 a I am sorry but it was injury to the right side of the head, Sir.

q Only part of the right ear?

a Yes, sir.

q If I am facing you, it is on your?

a Right, Sir.

q Right side on your part. Did you find any injury on the left side?

a No, Sir.52

From the medico-legal certificate issued by Dr. Cala and with his testimony in court, it is clear that the victim suffered
injuries on the right side of his head. Thus, the claim of Molly and Silmana Linglingen that the victim was struck from
behind on the right side of his head is consistent with the findings of Dr. Cala.

Dr. Mensalvas, on the other hand, testified that the victim sustained four injuries, three of which were on the left side of
the head and one on the right side. The medical certificate he issued states that the victim was confined for the following
injuries:

1. ACCI; CEREBRAL CONTUSSION

2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA

3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA

4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH UNDERLYING LINEAR

FRACTURE OF THE SKULL EXTENDING FROM THE LEFT FRONTAL TO THE LEFT TEMPORAL BONE.53

The question now is: which medical findings should this Court believe?

This Court believes in the findings made by Dr. Cala as contained in the medico-legal certificate he issued showing that
the victim suffered injuries on the right side of his head, consistent with the declarations of prosecution witnesses that the
victim was, from behind, struck with a shovel twice on the right side of the head. We give more weight to this medical
certificate, because the same was issued by a government doctor. By actual practice, only government physicians, by
virtue of their oaths as civil service officials, are competent to examine persons and issue medical certificates which will
be used by the government.54 As such, the medical certificate carries the presumption of regularity in the performance of
his functions and duties. Moreover, under Section 44, Rule 130,55 Revised Rules of Court, entries in official records made
in the performance of official duty are prima facie evidence of the facts therein stated. Dr. Cala’s findings that the victim
sustained injuries on the right side of his head are, therefore, conclusive in the absence of evidence proving the contrary,
as in this case. We cannot consider the contents of the medical certificate issued by Dr. Mensalvas sufficient to controvert
the findings of Dr. Cala. As held by this Court, an unverified medical certificate not issued by a government physician is
unreliable.56

Even assuming arguendo that we give more weight to the medical certificate issued by Dr. Mensalvas, this does not mean
that the testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted that Dr. Mensalvas testified that the
victim sustained a wound on the right side of his head, possibly caused by a steel shovel.57 Such a finding is consistent
with the claim of Molly and Silmana Linglingen that the victim was hit on the right side of the head. Though there can be
inconsistencies of the testimonies of the witnesses with Dr. Mensalvas’s other findings (i.e., injuries on the left portion of
the head) this does not mean that we should totally doubt and discard the other portions of their testimonies.

Well-settled is the rule that the testimony of a witness may be believed in part and disbelieved in another, depending on
the corroborative evidence or the probabilities and improbabilities of the case. Where a part of the testimony of a witness
runs counter to the medical evidence submitted, it is within the sound discretion of the court to determine which portions of
the testimony to reject as false and which to consider worthy of belief.58

From the two medical certificates issued, what cannot be doubted is the fact that the victim sustained head injuries,
whether on the left or the right, which caused his demise.

We find the testimonies of the prosecution eyewitnesses more credible and convincing than those of the defense
eyewitnesses. When it comes to credibility, the trial court’s assessment deserves great weight and is even conclusive and
binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is
obvious. Having the full opportunity to observe directly the witnesses’ deportment and manner of testifying, the trial court
is in a better position than the appellate court to evaluate testimonial evidence properly.59

The Court of Appeals further affirmed the findings of the RTC. In this regard, it is settled that when the trial court’s findings
have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. We find no
compelling reason to deviate from their findings.
Petitioner claims that the trial court judge was not able to observe the demeanor of the prosecution witnesses, because
they were looking at the court interpreter when they were testifying. We find this untenable. The trial court judge was
emphatic in saying that he had the chance to see the face of the witness while she testified.60

On the second and third assigned errors, petitioner admits killing James but invokes self-defense. He claims that the
victim was the unlawful aggressor and that he (petitioner) did not provoke the victim.

Article 11, paragraph (1) of the Revised Penal Code, provides for the elements and/or requisites in order that a plea of
self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

Having admitted that he killed James, the burden of evidence that one acted in self-defense shifted to petitioner. Like an
alibi, self-defense is inherently weak, for it is easy to fabricate.61 It is textbook doctrine that when self-defense is invoked,
the burden of evidence shifts to the accused to show that the killing was justified, and that he incurred no criminal liability
therefor. He must rely on the strength of his own evidence and not on the weakness of the prosecution’s evidence, for,
even if the latter were weak, it could not be disbelieved after his open admission of responsibility for the killing. Hence, he
must prove the essential requisites of self-defense as aforementioned.62

Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, whether complete or
incomplete.63 Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof,
and not merely a threatening or intimidating attitude.64 There must be actual physical force or a threat to inflict physical
injury. In case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause
injury.65

We agree with the Court of Appeals that petitioner failed to clearly and convincingly prove self-defense, whether complete
or incomplete.

We confirm the observation of the trial court. A circumspect scrutiny of accused-appellant’s version of what
happened likewise leaves this Court unconvinced that he killed the victim James Pangoden in self-defense.

First, accused-appellant’s claim that the victim James Pangoden, suddenly and without provocation, boxed him on
his right ear is simply unbelievable. By his own account, he (accused-appellant) was at that moment helping a
road vendor carry her sack of eggplants away from the path of the truck. If this is true, then his testimony that
James Pangoden attacked and boxed him for no reason at all loses credibility. Testimonies to be believed must
not only come from the mouth of credible witnesses but should by themselves be credible, reasonable, and in
accord with human experience.

Second, it is likewise inconceivable how accused-appellant could have hit the victim James Pangoden twice in the
head while he (accused-appellant) was allegedly in a sitting position and holding the shovel by the middle part of
its shaft. Interestingly also, while accused-appellant and his witness testified that he was in a "sitting" position
when he hit James Pangoden with the shovel, accused-appellant portrayed a different account when asked during
cross-examination to demonstrate how he hit the victim, viz:

Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the Court. All right you can step down from
the witness stand (Witness demonstrating.)

For the record, witness was in a kneeling position when he got the shovel.

A: I was down on the ground, and I was groping (sic) to somebody and I was able to get hold of the shovel, that
was the time I swang (sic) it towards him.

Q: You have not demonstrated how you hit Pangoden with the shovel?

For the record, witness is in a kneeling position when he allegedly picked up the shovel holding it in the middle
part. With his two hands and swang (sic) it upwards towards his left.

For the record, accused held the shovel on the middle part of the shaft, your Honor, not on the handle.

Third, it simply goes against the grain of human experience for the victim James Pangoden to persist in his attack
against accused-appellant after getting hit in the head with a steel shovel, considering that he is unarmed and had
nothing to match accused-appellant’s weapon on hand. That James Pangoden still had the resolution and power
 for a second assault on accused-appellant, after getting hit with a steel shovel in the head, flouts ordinary human
capacity and nature. In contrast, accused-appellant would claim that he "fell down" and "felt dizzy" after getting
boxed on the right side of his head by James Pangoden with his bare fist.

Fourth, accused-appellant himself admitted walking away from the crime scene immediately after the incident. As
we see it, this actuation on his part is contrary to his assertion of self-defense. Flight strongly indicates a guilty
mind and betrays the existence of a guilty conscience, for a righteous individual will not cower in fear and
unabashedly admit the killing at the earliest possible opportunity if he were morally justified in doing so.

Finally, the nature and number of the fatal injuries inflicted upon James Pangoden negate accused-appellant’s
claim of self-defense. Said victim suffered cerebral contusion, epidural hematoma, scalp laceration and skull
fracture, which directly caused his death. If accused-appellant hit the victim just to defend himself, it certainly
defies reason why he had to aim for the head and do it twice. Indeed, the nature, number and location of the
wounds sustained by the victim belie the assertion of self-defense since the gravity of said wounds is indicative of
a determined effort to kill and not just to defend.

xxxx

But even assuming arguendo that accused-appellant was able to establish the element of unlawful aggression,
still, this Court will rule out self-defense.

It is undisputed that James Pangoden was unarmed while accused-appellant was armed with a steel shovel.
There was no reasonable necessity for accused-appellant to use a steel shovel to repel the attack of an unarmed
man. Moreover, the eyewitnesses’ account of how accused-appellant uncaringly threw the soiled eggplants
towards the direction of James Pangoden’s goods would negate the absence of sufficient provocation on the part
of accused-appellant. Thus, the second and third requisites for self-defense to be successfully invoked, namely,
reasonable necessity of the means employed to repel the attack and lack of sufficient provocation on the part of
the accused, are not present in this case.66

We now go to the imposition of the penalty. We agree with the Court of Appeals when it appreciated in favor of the
petitioner the mitigating circumstance of voluntary surrender. It was established that a few hours after the incident,
petitioner submitted himself to his supervisors, who, in turn, surrendered him to the police authorities.

Petitioner is guilty of Homicide for having killed James Pangoden. The penalty for homicide under Article 249 of the
Revised Penal Code is reclusion temporal. However, considering that there is one mitigating circumstance and no
aggravating circumstance in the commission of the crime, the imposable penalty, following Article 64(2) of the Revised
Penal Code, is reclusion temporal in its minimum period or within the range of twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed
shall be taken from the minimum period of reclusion temporal, while the minimum shall be taken from within the range of
the penalty next lower in degree, which is prision mayor or from six (6) years and one (1) day to twelve (12) years.

The Court of Appeals sentenced petitioner to suffer the penalty of eight (8) years of prision mayor, as minimum, to
fourteen (14) years of reclusion temporal, as maximum. We find this to be in order.

With respect to award of damages, the trial court awarded to the heirs of the victim the following amounts: P195,080.05 as
actual damages; P300,000.00 as moral damages; P50,000.00 as death indemnity; and P3,135,720.00 for loss of earning
capacity.

The Court of Appeals, except for the award of death indemnity, reduced the awards given by the trial court as
follows: P51,549.25 as actual damages; P50,000.00 as moral damages and P1,960,200.00 for lost income.

When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of
the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate
damages.67

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the
crime.68 Under prevailing jurisprudence,69 the award of P50,000.00 to the heirs of the victim as civil indemnity is in order.70

As to actual damages, the heirs of the victim are entitled thereto, because said damages amounting to P51,549.25 were
duly proved by receipts. It is necessary for a party seeking actual damages to produce competent proof or the best
evidence obtainable, such as receipts, to justify an award therefor.71

Moral damages must also be awarded because these are mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim.72 The award of P50,000.00 as moral damages is in order.

The award of P25,000.00 as temperate damages in homicide or murder cases is proper when no evidence of burial and
funeral expenses is presented in the trial court.73 Under Article 2224 of the Civil Code, temperate damages may be
recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss, although the exact amount was not
proved.74 In the case on hand, temperate damages cannot be awarded, because evidence of expenses for burial and
funeral has been presented for which actual damages have been awarded.
As regards exemplary damages, Article 2230 of the Civil Code allows the award thereof as part of the civil liability when
the crime was committed with one or more aggravating circumstances.75 There being no aggravating circumstance that
accompanied the commission of the crime, exemplary damages cannot be awarded.

The computation of the Court of Appeals with respect to lost earning capacity is correct. At the time of his death, the victim
was 31 years old. His gross annual income was P120,000.00 because he was earning P10,000.00 monthly. Living
expenses are estimated at 50% of the gross annual income. Loss of earning capacity is computed by applying the
following formula:76

Net Earning = life expectancy x [Gross – living expenses

Capacity [2/3(80-age at death)] Annual (50% of GAI)]
Income (GAI)
= [2/3(80-31)] x [(GAI) – (50% of GAI)]

= 2 (49)     x [P120,000 – P60,000]

   3
= [98/3] x [P60,000]

= [32.67] x [P60,000]

Net Earning = P1,960,200.00

Capacity of the
victim

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR No. 26636, dated 31
January 2006, is AFFIRMED in toto. Costs against the petitioner.

SO ORDERED.

G.R. No. L-8171             August 16, 1956

EMILIO MANALO and CARLA SALVADOR, plaintiffs-appellees,

vs.
ROBLES TRANSPORTATION COMPANY, INC., defendant-appellant.

Cornelio S. Ruperto and Lazaro Pormarejo for appellant.

San Juan, Africa, Yñiguez and Benedicto for appellees.

MONTEMAYOR, J.:

Robles Transportation Company, Inc., later referred to as the Company, is appealing from the decision of the Court
of First Instance of Rizal, civil case No. 2013, ordering it to pay plaintiffs Emilio Manalo and his wife, Clara Salvador,
the sum of P3,000 with interest at 12 per cent per annum from November 14, 1952 plus the amount of P600 for
attorney's fee and expenses of litigation, with cost.

The facts involved in this case are simple and without dispute. On August 9, 1947, a taxicab owned and operated by
defendant appellant Company and driven by Edgardo Hernandez its driver, collided with a passenger truck at
Parañaque, Rizal. In the course of and a result of the accident, the taxicab ran over Armando Manalo, an eleven
year old, causing him physical injuries which resulted in his death several days later. Edgardo Hernandez was
prosecuted for homicide through reckless imprudence and after trial was found guilty of the charge and sentenced
to one year prision correccional, to indemnify the heirs of the deceased in the amount of P3,000, in the case of
insolvency to suffer subsidiary imprisonment, and to pay costs. Edgardo Hernandez served out his sentence but
failed to pay the indemnity. Two writs of execution were issued against him to satisfy the amount of the indemnity,
but both writs were returned unsatisfied by the sheriff who certified that property, real or personal in Hernandez"
name could be found.

On February 17, 1953, plaintiffs Emilio Manalo and his wife Clara Salvador, father and mother respectively of
Armando filed the present action against the Company to enforce its subsidiary liability, pursuant to Articles 102 and
103 of the Revised Penal Code. The Company filed its appearance and answer and later an amended answer with
special defenses and counterclaim. It also filed a motion to dismiss the complaint unless and until the convicted
driver Hernandez was included as a party defendant, the Company considering him an indispensable party. The trial
court denied the motion to dismiss, holding that Hernandez was not an indispensable party defendant. Dissatisfied
with this ruling, the Company filed certiorari proceedings with the Court of Appeals, but said appellate court held that
Hernandez was not an indispensable party defendant, and consequently, the trial court in denying the motion to
dismiss acted within the proper limits of its discretion. Eventually, the trial court rendered judgment sentencing the
defendant Company to pay to plaintiffs damages in the amount P3,000 with interest at 12 per cent per annum from
November 14, 1952, plus P600 for attorney's fee and expenses for litigation, with cost. As aforesaid, the Company
is appealing from this decision.
To prove their case against the defendant Company, the plaintiffs introduced a copy of the decision in the criminal
case convicting Hernandez of homicide through reckless imprudence, the writs of execution to enforce the civil
liability, and the returns of the sheriff showing that the two writs of execution were not satisfied because of the
insolvency of Hernandez, the sheriff being unable to locate any property in his name. Over the objections of the
Company, the trial court admitted this evidence and based its decision in the present case on the same.

Defendant-appellant now contends that this kind of evidence is inadmissible and cities in support of its contention
the cases of City of Manila vs. Manila Electric Company (52 Phil., 586), and Arambulo vs. Manila Electric decided
by this tribunal in the case of Martinez vs. Barredo (81 Phil., 1). After considering the same two cases now cited by
appellant, this court held that the judgment of conviction, in the absence of any collusion between the defendant and
offended party, is binding upon the party subsidiarily liable.

The appelant also claims that in admitting as evidence the sheriff's return of the writs of execution to prove the
insolvency of Hernandez, without requiring said opportunity to cross-examine said sheriff. A sheriff's return is an
official statement made by a public official in the performance of a duty specially enjoined by the law and forming
part of official records, and is prima facie evidence of the facts stated therein. (Rule 39, section 11 and Rule 123,
section 35, Rules of Court.) The sheriff's making the return need not testify in court as to the facts stated in his entry.
In the case of Antillon vs. Barcelon, 37 Phil., 151 citing Wigmore on Evidence, this court said:

To the foregoing rules with reference to the method of proving private documents an exception is made with
reference to the method of proving public documents executed before and certified to, under the land of seal
of certain public officials. The courts and the legislature have recognized the valid reason for such an
exception. The litigation is unlimited in which testimony by officials is daily needed, the occasion in which the
officials would be summoned from his ordinary duties to declare as a witness are numberless. The public
officers are few in whose daily work something is not done in which testimony is not needed from official
statements, host of official would be found devoting the greater part of their time to attending as witness in
court or delivering their depositions before an officer. The work of Administration of government and the
interest of the public having business with officials would alike suffer in consequence.

And this Court added:

The law reposes a particular confidence in public officers that it presumes they will discharge their several
trust with accuracy and fidelity; and therefore, whatever acts they do in discharge of their public duty may be
given in evidence and shall be taken of their public duty may be given in evidence and shall be taken to be
true under such a degree of caution as the nature and circumstances of each a case may appear to require.

The appellant also contends that Article 102 and 103 of the Revised Penal Code were repealed by the New Civil
Code, promulgated in 1950, particularly, by the repealing clause under which comes Article 2270 of the said code.
We find the contention untenable. Article 2177 of the New Civil Code expressly recognizes civil liabilities arising
from negligence under the Penal Code, only that it provides that plaintiff cannot recover damages twice for the same
act of omission of the defendant.

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct
from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages
twice for the same act of omission of the defendant.

Invoking prescription, appellant claims that the present action is barred by the Statute of Limitations for the reason
that it is an action either upon a quasi delict, and that according to Article 1146 of the New Civil Code, such action
must be instituted within four years. We agree with the appellee that the present action is based upon a judgement,
namely, that in the criminal case, finding Hernandez guilty of homicide through reckless imprudence and sentencing
him to indemnify the heirs of the deceased in the sum of P3,000, and, consequently may be instituted within ten
years.

As regards the other errors assigned by appellant, we find it unnecessary to discuss and rule upon them.

Finding the decision appealed from to be in accordance with law, the same is hereby affirmed, with costs.

G.R. No. 107735             February 1, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICARDO SAN GABRIEL Y ORTIZ, defendant-appellant.

DECISION

BELLOSILLO, J.:
RICARDO O. SAN GABRIEL was charged with murder in an Information alleging that on 26 November 1989, armed
with a bladed weapon, in conspiracy with "Ramon Doe," with treachery, evident premeditation and intent to kill, he
assaulted and stabbed to death Jaime A. Tonog. 1

The trial court convicted the accused as charged and sentenced him "to life imprisonment and to pay the heirs of
Jaime Tonog the sum of P30,000, plus costs." 2

The accused is now before us on appeal.

The evidence shows that at around seven o'clock in the evening of 26 November 1989, within the vicinity of Pier 14
at North Harbor along Marcos Road, Manila, a fistfight ensued between Jaime Tonog on one hand and the accused
Ricardo San Gabriel together with "Ramon Doe" on the other. The fight was eventually broken up when onlookers
pacified the protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were back with
bladed weapons. They approached Tonog surreptitiously, surrounded him and simultaneously stabbed him in the
stomach and at the back, after which the assailants ran towards the highway leaving Tonog behind on the ground.
He was then brought to Mary Johnston Hospital where he was pronounced dead on arrival.

Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District, autopsied the cadaver of the victim and
reported that it sustained two (2) penetrating stab wounds each caused by a single-bladed instrument. He opined
that both wounds were fatal. 3

The accused has a different version. He testified that he saw Tonog drunk; Tonog even attempted to box him but he
parried his blow; Tonog continued walking but when he chanced upon Ramon he suddenly and without provocation
boxed and kicked Ramon; Ramon fought back but was subdued by his bigger assailant so the former ran towards
the highway; when Tonog met a certain "Mando" he boxed the latter who however fought back despite his (accused)
warning not to; at this moment he saw Ramon return with a bolo on hand; he warned Ramon not to fight but his
advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when "Mando" saw what
happened he ("Mando") pulled out his knife and also stabbed Tonog at the back; Ramon and "Mando" then fled
towards the highway.

The accused further claimed that he even stayed with the victim and called out the latter's companions to bring him
to the hospital; that prosecution witness Brenda Gonzales only arrived at the crime scene after Tonog was already
taken to the hospital; that Brenda even inquired from him what happened and then prodded him to testify; that his
refusal coupled with the fact that he owed Gonzales some money earned him the ire of the latter and that was why
he was charged for the death of Tonog.

Accused-appellant claims in this appeal that the trial court erred: (a) in giving credence to the testimonies of
prosecution witnesses Brenda Gonzales and Pio Ochobillo, and for discrediting his; (b) in finding that the killing was
attended with evident premeditation; (c) in ruling that he committed treachery and, (d) in convicting him of murder. 4

We sustain the conviction of the accused for murder. It is settled that findings of fact of the trial court are accorded
greatest respect by the appellate court absent any abuse of discretion, and none is perceivable in the case at
5 

bench; hence we affirm the factual findings of the trial court.

The accused contends that the testimonies of the prosecution witnesses are incredible and conflicting. We however
find otherwise. Gonzales and Ochobillo, as observed by the trial court, testified in a direct and candid manner. No
evil motive is attributed to them as to testify falsely against the accused. That Gonzales harbored a grudge against
the accused because he owed her some money, and even enticed her customers into patronizing
another carinderia, can hardly be believed. We are not convinced that Brenda Gonzales would testify against
accused-appellant for a crime so grave simply because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the fact that on the night of the incident he
was, as he claimed, eating at the carinderia of Gonzales. If there be any testimony that should be considered
incredible and illogical it must be that of the accused. His assertion that "Mando" stabbed the victim should not
receive any evidentiary value when weighed against the positive assertion of the prosecution witnesses that the
accused was the assailant of Jaime Tonog.

Quite interestingly, the accused did not offer any information regarding the person and circumstances of "Mando."
Up to this date "Mando" remains a myth. Not a single witness was presented by the defense to prove who "Mando"
was, nor even a hint of his personal circumstances. During the entire proceedings in the court below "Mando" was
never mentioned by the prosecution witnesses. Nobody ever implicated him except the accused. In fact, there
should have been no difficulty procuring witnesses to testify on the part of the accused as the incident was viewed
openly by a multitude of bystanders. His failure to present any witness pointing to "Mando" as the perpetrator of the
crime convinces us that "Mando" in fact existed only as a figment of the mind.

The accused also asserts that Gonzales arrived at the crime scene only after the victim was brought to the hospital
and that she even inquired from him about what happened.

Again we are not persuaded. The statement contradicts the earlier version of the accused that Gonzales was
prejudiced against him as he owed her some money. For, granting that Gonzales had a grudge against him it was
not likely that she would inquire from him about the incident as there were other persons then present who could
shed light on the startling occurrence.

Equally dubious is the avowal of the accused that Gonzales arrived at the crime scene only after the victim was
rushed to the hospital considering that the incident took place just in front of her store. Besides, this claim was easily
demolished by Gonzales' detailed account of the fight.

The fact that the witnesses did not immediately report the incident to the police does not necessarily discredit them.
After all, reports were made albeit by different persons. The accused banks on the apparent inconsistency as to why
Gonzales failed to give immediately her account of the killing to the authorities. But the discrepancy is so minor that
it cannot undermine her credibility nor detract from the truth that she personally witnessed the incident and positively
identified the accused.

The accused leans heavily on the Advance Information Sheet prepared by Pat. Steve Casimiro which did not
6 

mention him at all and named only "Ramon Doe" as the principal suspect. Unfortunately this cannot defeat the
positive and candid testimonies of the prosecution witnesses. Entries in official records, as in the case of a police
blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police
blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes from either partial
suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his
accurate recollection of all that pertain to the subject. It is understandable that the testimony during the trial would
be more lengthy and detailed than the matters stated in the police blotter Significantly, the Advance Information
7 

Sheet was never formally offered by the defense during the proceedings in the court below. Hence any reliance by
the accused on the document must fail since the court cannot consider any evidence which has not been formally
offered.8

Parenthetically, the Advance Information Sheet was prepared by the police officer only after interviewing Camba, an
alleged eyewitness. The accused then could have compelled the attendance of Camba as a witness. The failure to
exert the slightest effort to present Camba on the part of the accused should militate against his cause.

Entries in official records made in the performance of his duty by a public officer or by a person in the performance
of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in
9 

evidence three (3) requisites must concur: (a) The entry was made by a police officer or by another person specially
enjoined by law to do so; (b) It was made by the public officer in the performance of his duties or by such other
person in the performance of a duty specially enjoined by law; and, (c) The public officer or other person had
sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official
information. 10

The Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. The
public officer who prepared the document had no sufficient and personal knowledge of the stabbing incident. Any
information possessed by him was acquired from Camba which therefore could not be categorized as official
information because in order to be classified as such the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give such statements for the record.  In the case
11 

of Camba, he was not legally so obliged to give such statements.

The accused enumerates discrepancies in the testimonies of the prosecution witnesses. Thus, according to him, it
was testified that the victim was stabbed by the accused at the back but failed to point out its precise location. The
stabbing admittedly occurred at around seven o'clock in the evening but the Advance Information Sheet reported
"6:30 p.m." One witness testified that the fistfight was only between the victim and "Ramon Doe," while another
reported that it involved the victim, "Ramon Doe" and the accused. Further, it was not accurately determined
whether Ramon and the accused returned to the scene of the crime within five (5) minutes or after the lapse thereof.

As previously stated, the discrepancies do not militate against the fact firmly established by the prosecution that
Tonog was stabbed at the back by the accused and by "Ramon Doe" in the abdomen. Any discordance noted is so
minor and insignificant that no further consideration is essential. The most honest witnesses make mistakes
sometimes, but such innocent lapses do not necessarily impair their credibility. The testimony of a witness must be
considered and calibrated in its entirety and not by truncated portions thereof or isolated passages therein.  12

The presence of the accused in the vicinity even after the commission of the crime does not in any way extricate him
from his dilemma. Certainly, it is no proof of his innocence.

The court a quo properly considered the aggravating circumstance of treachery in convicting the accused of murder.
Treachery is present when the offender commits any of the crimes against person, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.  Alevosia or treachery presumes an attack that is deliberate
13 

and unexpected. There is no treachery when the victim is placed on guard, as when a heated argument preceded
the attack, especially when the victim was standing face to face with his assailants, and the initial assault could not
have been foreseen.  14
It is true that in the case at bench the attack was preceded by a fistfight. It was however established that they were
already pacified by onlookers when the accused and Ramon returned. Lulled into complacency the victim simply
stayed where he was before the fistfight when after a brief moment the accused together with Ramon returned with
bladed weapons. Both approached the victim and circled him surreptitiously. The attack was sudden and
simultaneous that the victim was never given a chance to defend himself. As we have held in People
v. Balisteros,  where a victim was totally unprepared for the unexpected attack from behind and had no weapon to
15 

resist it, the stabbing could not but be considered as treacherous. The evidence proved that the victim was caught
unaware by the sudden assault. No weapon was found, nor even intimated to be, in his possession.

Conversely the court a quo should have disregarded evident premeditation. Evident premeditation requires a
showing that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.  Evidence for the
16 

prosecution showed that after the fight was broken up the accused and "Ramon Doe" proceeded towards the
highway. They returned only after a lapse of approximately five (5) minutes. From the foregoing we cannot conclude
that the accused had sufficient time within which to meditate on the consequences of his acts. Meditation
necessitates that it be evident and proven. Be that as it may, treachery as a qualifying circumstance having attended
the killing, the conviction of the accused for murder still holds.

WHEREFORE, the decision of the court a quo in Crim. Case No. 90-81744 dated 25 July 1991 convicting accused-
appellant RICARDO SAN GABRIEL Y ORTIZ of murder is AFFIRMED. The penalty of life imprisonment however is
MODIFIED to reclusion perpetua,  while the award of P30,000.00 as indemnity is INCREASED to P50,000.00
17 

conformably with existing jurisprudence. Costs against accused-appellant.

SO ORDERED.

G.R. No. 193261               April 24, 2012

MEYNARDO SABILI, Petitioner,
vs.
COMMISSION ON ELECTIONS and FLORENCIO LIBREA, Respondents.

DECISION

SERENO, J.:

Before us is a Petition for Certiorari under Rule 64 in relation to Rule 65 of the Rules of Court, seeking to annul the
Resolutions in SPA No. 09-047 (DC) dated 26 January 2010 and 17 August 2010 of the Commission on Elections
(COMELEC), which denied due course to and canceled the Certificate of Candidacy (COC) of petitioner Meynardo
Sabili (petitioner) for the position of Mayor of Lipa City for the May 2010 elections. At the

heart of the controversy is whether petitioner Sabili had complied with the one-year residency requirement for local
elective officials.

When petitioner filed his COC for mayor of Lipa City for the 2010 elections, he stated therein that he had been a
1 

resident of the city for two (2) years and eight (8) months. Prior to the 2010 elections, he had been twice elected (in
1995 and in 1998) as Provincial Board Member representing the 4th District of Batangas. During the 2007 elections,
petitioner ran for the position of Representative of the 4th District of Batangas, but lost. The 4th District of Batangas
includes Lipa City. However, it is undisputed that when petitioner filed his COC during the 2007 elections, he and his
2 

family were then staying at his ancestral home in Barangay (Brgy.) Sico, San Juan, Batangas.

Private respondent Florencio Librea (private respondent) filed a "Petition to Deny Due Course and to Cancel
Certificate of Candidacy and to Disqualify a Candidate for Possessing Some Grounds for Disqualification" against
3 

him before the COMELEC, docketed as SPA No. 09-047 (DC). Citing Section 78 in relation to Section 74 of the
Omnibus Election Code, private respondent alleged that petitioner made material misrepresentations of fact in the
4 

latter’s COC and likewise failed to comply with the one-year residency requirement under Section 39 of the Local
Government Code.  Allegedly, petitioner falsely declared under oath in his COC that he had already been a resident
5 

of Lipa City for two years and eight months prior to the scheduled 10 May 2010 local elections.

In support of his allegation, private respondent presented the following:

1. Petitioner’s COC for the 2010 elections filed on 1 December 2009 6

2. 2009 Tax Declarations for a house and lot (TCT Nos. 173355, 173356 and buildings thereon) in
Pinagtong-ulan, Lipa City registered under the name of Bernadette Palomares, petitioner’s common-law
wife7

3. Lipa City Assessor Certification of Property Holdings of properties under the name of Bernadette
Palomares 8
 4. Affidavit executed by private respondent Florencio Librea 9

5. Sinumpaang Salaysay executed by Eladio de Torres 10

6. Voter Certification on petitioner issued by COMELEC Election Officer Juan D. Aguila, Jr. 11

7. 1997 Voter Registration Record of petitioner 12

8. National Statistics Office (NSO) Advisory on Marriages regarding petitioner 13

9. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 3, Brgy. Lood, Lipa City registered in the
name of petitioner14

10. NSO Certificate of No Marriage of Bernadette Palomares 15

11. Lipa City Assessor Certificate of No Improvement on Block 2, Lot 5, Brgy. Lood, Lipa City registered in
the name of petitioner 16

12. Lipa City Permits and Licensing Office Certification that petitioner has no business therein 17

13. Apparent printout of a Facebook webpage of petitioner’s daughter, Mey Bernadette Sabili 18

14. Department of Education (DepEd) Lipa City Division Certification that the names Bernadette Palomares,
Mey Bernadette Sabili and Francis Meynard Sabili (petitioner’s son) do not appear on its list of graduates 19

15. Certification from the Office of the Election Officer of Lipa City that Bernadette Palomares, Mey
Bernadette Sabili and Francis Meynard Sabili do not appear in its list of voters 20

16. Affidavit executed by Violeta Fernandez 21

17. Affidavit executed by Rodrigo Macasaet 22

18. Affidavit Executed by Pablo Lorzano 23

19. Petitioner’s 2007 COC for Member of House of Representative 24

For ease of later discussion, private respondent’s evidence shall be grouped as follows: (1) Certificates regarding
ownership of real property; (2) petitioner’s Voter Registration and Certification (common exhibits of the parties); (3)
petitioner’s COCs in previous elections; (3) Certifications regarding petitioner’s family members; and (4) Affidavits of
Lipa City residents.

On the other hand, petitioner presented the following evidence to establish the fact of his residence in Lipa City:

1. Affidavit executed by Bernadette Palomares 25

2. Birth Certificate of Francis Meynard Sabili 26

3. Affidavit of Leonila Suarez (Suarez) 27

4. Certification of Residency issued by Pinagtong-ulan Barangay Captain, Dominador Honrade 28

5. Affidavit executed by Rosalinda Macasaet 29

6. Certificate of Appreciation issued to petitioner by the parish of Sto. Nino of Pinagtong-ulan 30

7. Designation of petitioner in the Advisory Body (AB) of Pinagtong-ulan, San Jose/Lipa City Chapter of
Guardians Brotherhood, Inc. 31

8. COMELEC Voter Certification on petitioner issued by Election Officer Juan Aguila, Jr. 32

9. COMELEC Application for Transfer/Transfer with Reactivation dated 6 June 2009 signed by Election
Officer Juan Aguila, Jr. 33

10. Petitioner’s Income Tax Return for 2007 34

11. Official Receipt for petitioner’s income tax payment for 2007 35
 12. Petitioner’s Income Tax Return for 2008 36

13. Official Receipt for petitioner’s income tax payment for 2008 37

14. Birth Certificate of Mey Bernadette Sabili 38

15. Affidavit executed by Jacinto Cornejo, Sr. 39

16. Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including past and incumbent Pinagtong-ulan
officials.
40

For ease of later discussion, petitioner’s evidence shall be grouped as follows: (1) his Income Tax Returns and
corresponding Official Receipts for the years 2007 and 2008; (2) Certification from the barangay captain of
Pinagtong-ulan; (3) Affidavit of his common-law wife, Bernadette Palomares; and (4) Affidavits from a previous
property owner, neighbors, Certificate of Appreciation from the barangay parish and Memorandum from the local
chapter of Guardians Brotherhood, Inc.

The COMELEC Ruling

In its Resolution dated 26 January 2010, the COMELEC Second Division granted the Petition of private respondent,
41 

declared petitioner as disqualified from seeking the mayoralty post in Lipa City, and canceled his Certificate of
Candidacy for his not being a resident of Lipa City and for his failure to meet the statutory one-year residency
requirement under the law.

Petitioner moved for reconsideration of the 26 January 2010 Resolution of the COMELEC, during the pendency of
which the 10 May 2010 local elections were held. The next day, he was proclaimed the duly elected mayor of Lipa
City after garnering the highest number of votes cast for the said position. He accordingly filed a Manifestation with
42 

the COMELEC en banc to reflect this fact.

In its Resolution dated 17 August 2010, the COMELEC en banc denied the Motion for Reconsideration of petitioner.
43 

Although he was able to receive his copy of the Resolution, no prior notice setting the date of promulgation of the
said Resolution was received by him. Meanwhile, Section 6 of COMELEC Resolution No. 8696 (Rules on
Disqualification Cases Filed in Connection with the May 10, 2012 Automated National and Local Elections) requires
the parties to be notified in advance of the date of the promulgation of the Resolution.

SEC. 6. Promulgation. – The promulgation of a Decision or Resolution of the Commission or a Division shall be
made on a date previously fixed, notice of which shall be served in advance upon the parties or their attorneys
personally, or by registered mail, telegram, fax, or thru the fastest means of communication.

Hence, petitioner filed with this Court a Petition (Petition for Certiorari with Extremely Urgent Application for the
Issuance of a Status Quo Order and for the Conduct of a Special Raffle of this Case) under Rule 64 in relation to
Rule 65 of the Rules of Court, seeking the annulment of the 26 January 2010 and 17 August 2010 Resolutions of
the COMELEC. Petitioner attached to his Petition a Certificate of Canvass of Votes and proclamation of Winning
Candidates for Lipa City Mayor and Vice-Mayor issued by the City/Municipal Board of Canvassers, as well as a
44 

copy of his Oath of Office. He also attached to his Petition another Certification of Residency issued by Pinagtong-
45  46 

ulan Barangay Captain Dominador Honrade and sworn to before a notary public.

On 7 September 2010, this Court issued a Status Quo Ante Order requiring the parties to observe the status quo
47 

prevailing before the issuance of the assailed COMELEC Resolutions. Thereafter, the parties filed their responsive
pleadings.

Issues

The following are the issues for resolution:

1. Whether the COMELEC acted with grave abuse of discretion when it failed to promulgate its Resolution
dated 17 August 2010 in accordance with its own Rules of Procedure; and

2. Whether the COMELEC committed grave abuse of discretion in holding that Sabili failed to prove
compliance with the one-year residency requirement for local elective officials.

The Court’s Ruling

1. On whether the COMELEC acted with grave abuse of discretion when it failed to promulgate its Resolution
dated 17 August 2010 in accordance with its own Rules of Procedure
Petitioner argues that the assailed 17 August 2010 COMELEC Resolution, which denied petitioner’s Motion for
Reconsideration, is null and void. The Resolution was allegedly not promulgated in accordance with the
COMELEC’s own Rules of Procedure and, hence, violated petitioner’s right to due process of law.

The rules governing the Petition for Cancellation of COC in this case is COMELEC Resolution No. 8696 (Rules on
Disqualification of Cases Filed in Connection with the May 10, 2010 Automated National and Local Elections), which
was promulgated on 11 November 2009. Sections 6 and 7 thereof provide as follows:

SEC. 6. Promulgation. - The promulgation of a Decision or Resolution of the Commission or a Division shall be
made on a date previously fixed, notice of which shall be served in advance upon the parties or their attorneys
personally, or by registered mail, telegram, fax or thru the fastest means of communication.

SEC. 7. Motion for Reconsideration. - A motion to reconsider a Decision, Resolution, Order or Ruling of a Division
shall be filed within three (3) days from the promulgation thereof. Such motion, if not pro-forma, suspends the
execution for implementation of the Decision, Resolution, Order or Ruling.

Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the Presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.

The Clerk of the Commission shall calendar the Motion for Reconsideration for the resolution of the Commission en
banc within three (3) days from the certification thereof.

However, the COMELEC Order dated 4 May 2010 suspended Section 6 of COMELEC Resolution No. 8696 by
48 

ordering that "all resolutions be delivered to the Clerk of the Commission for immediate promulgation" in view of "the
proximity of the Automated National and Local Elections and lack of material time." The Order states:

ORDER

Considering the proximity of the Automated National and Local Elections and lack of material time, the Commission
hereby suspends Sec. 6 of Resolution No. 8696 promulgated on November 11, 2009, which reads:

Sec. 6. Promulgation. – The promulgation of a Decision or Resolution of the Commission or a Division shall be
made on a date previously fixed, notice of which shall be served upon the parties or their attorneys personally, or by
registered mail, telegram, fax or thru the fastest means of communication."

Let all resolutions be delivered to the Clerk of the Commission for immediate promulgation.

SO ORDERED.

Petitioner claims that he did not receive notice of the said suspension of Section 6 of COMELEC Resolution No.
8696. Thus, his right to due process was still violated. On the other hand, the COMELEC claims that it has the
power to suspend its own rules of procedure and invokes Section 6, Article IX-A of the Constitution, which gives it
the power "to promulgate its own rules concerning pleadings and practice before it or before any of its offices."

We agree with the COMELEC on this issue.

In Lindo v. Commission on Elections, petitioner claimed that there was no valid promulgation of a Decision in an
49 

election protest case when a copy thereof was merely furnished the parties, instead of first notifying the parties of a
set date for the promulgation thereof, in accordance with Section 20 of Rule 35 of the COMELEC’s own Rules of
Procedure, as follows:

Sec. 20. Promulgation and Finality of Decision. — The decision of the court shall be promulgated on a date set by it
of which due notice must be given the parties. It shall become final five (5) days after promulgation. No motion for
reconsideration shall be entertained.

Rejecting petitioner’s argument, we held therein that the additional rule requiring notice to the parties prior to
promulgation of a decision is not part of the process of promulgation. Since lack of such notice does not prejudice
the rights of the parties, noncompliance with this rule is a procedural lapse that does not vitiate the validity of the
decision. Thus:

This contention is untenable. Promulgation is the process by which a decision is published, officially announced,
made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their
counsel (Neria v. Commissioner of Immigration, L-24800, May 27, 1968, 23 SCRA 812). It is the delivery of a court
decision to the clerk of court for filing and publication (Araneta v. Dinglasan, 84 Phil. 433). It is the filing of the signed
decision with the clerk of court (Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989, En Banc Minute
Resolution). The additional requirement imposed by the COMELEC rules of notice in advance of promulgation is not
part of the process of promulgation. Hence, We do not agree with petitioner’s contention that there was no
promulgation of the trial court's decision. The trial court did not deny that it had officially made the decision public.
From the recital of facts of both parties, copies of the decision were sent to petitioner's counsel of record and
petitioner’s (sic) himself. Another copy was sent to private respondent.

What was wanting and what the petitioner apparently objected to was not the promulgation of the decision but the
failure of the trial court to serve notice in advance of the promulgation of its decision as required by the COMELEC
rules. The failure to serve such notice in advance of the promulgation may be considered a procedural lapse on the
part of the trial court which did not prejudice the rights of the parties and did not vitiate the validity of the decision of
the trial court nor (sic) of the promulgation of said decision.

Moreover, quoting Pimping v. COMELEC, citing Macabingkil v. Yatco, we further held in the same case that failure
50  51 

to receive advance notice of the promulgation of a decision is not sufficient to set aside the COMELEC’s judgment,
as long as the parties have been afforded an opportunity to be heard before judgment is rendered, viz:

The fact that petitioners were not served notice in advance of the promulgation of the decision in the election protest
cases, in Our view, does not constitute reversible error or a reason sufficient enough to compel and warrant the
setting aside of the judgment rendered by the Comelec. Petitioners anchor their argument on an alleged denial to
them (sic) due process to the deviation by the Comelec from its own made rules. However, the essence of due
process is that, the parties in the case were afforded an opportunity to be heard.

In the present case, we read from the COMELEC Order that the exigencies attendant to the holding of the country’s
first automated national elections had necessitated that the COMELEC suspend the rule on notice prior to
promulgation, and that it instead direct the delivery of all resolutions to the Clerk of the Commission for immediate
promulgation. Notably, we see no prejudice to the parties caused thereby. The COMELEC’s Order did not affect the
right of the parties to due process. They were still furnished a copy of the COMELEC Decision and were able to
reckon the period for perfecting an appeal. In fact, petitioner was able to timely lodge a Petition with this Court.

Clearly, the COMELEC validly exercised its constitutionally granted power to make its own rules of procedure when
it issued the 4 May 2010 Order suspending Section 6 of COMELEC Resolution No. 8696. Consequently, the second
assailed Resolution of the COMELEC cannot be set aside on the ground of COMELEC’s failure to issue to petitioner
a notice setting the date of the promulgation thereof.

2. On whether the COMELEC committed grave abuse of discretion in holding that Sabili failed to prove compliance
with the one-year residency requirement for local elective officials

As a general rule, the Court does not ordinarily review the COMELEC’s appreciation and evaluation of evidence.
However, exceptions thereto have been established, including when the COMELEC's appreciation and evaluation of
evidence become so grossly unreasonable as to turn into an error of jurisdiction. In these instances, the Court is
compelled by its bounden constitutional duty to intervene and correct the COMELEC's error. 52

In Mitra v. Commission on Elections, (G.R. No. 191938, 2 July 2010), we explained that the COMELEC’s use of
wrong or irrelevant considerations in deciding an issue is sufficient to taint its action with grave abuse of discretion -

As a concept, "grave abuse of discretion" defies exact definition; generally, it refers to "capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction;" the abuse of discretion must be patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion
and hostility. Mere abuse of discretion is not enough; it must be grave. We have held, too, that the use of wrong or
irrelevant considerations in deciding an issue is sufficient to taint a decision-maker's action with grave abuse of
discretion.

Closely related with the limited focus of the present petition is the condition, under Section 5, Rule 64 of the Rules of
Court, that findings of fact of the COMELEC, supported by substantial evidence, shall be final and non-reviewable.
Substantial evidence is that degree of evidence that a reasonable mind might accept to support a conclusion.

In light of our limited authority to review findings of fact, we do not ordinarily review in a certiorari case the
COMELEC's appreciation and evaluation of evidence. Any misstep by the COMELEC in this regard generally
involves an error of judgment, not of jurisdiction.

In exceptional cases, however, when the COMELEC's action on the appreciation and evaluation of evidence
oversteps the limits of its discretion to the point of being grossly unreasonable, the Court is not only obliged, but has
the constitutional duty to intervene. When grave abuse of discretion is present, resulting errors arising from the
grave abuse mutate from error of judgment to one of jurisdiction.

Before us, petitioner has alleged and shown the COMELEC’s use of wrong or irrelevant considerations in deciding
the issue of whether petitioner made a material misrepresentation of his residency qualification in his COC as to
order its cancellation. Among others, petitioner pointed to the COMELEC’s inordinate emphasis on the issue of
property ownership of petitioner’s declared residence in Lipa City, its inconsistent stance regarding Palomares’s
relationship to the Pinagtong-ulan property, and its failure to consider in the first instance the certification of
residence issued by the barangay captain of Pinagtong-ulan. Petitioner bewails that the COMELEC required "more"
evidence to show the change in his residence, notwithstanding the various pieces of evidence he presented and the
fact that under the law, the quantum of evidence required in these cases is merely substantial evidence and not
clear and convincing evidence. Petitioner further ascribes grave abuse of discretion in the COMELEC’s brushing
aside of the fact that he has been filing his ITR in Lipa City (where he indicates that he is a resident of Pinagtong-
ulan) on the mere expedient that the law allows the filing of the ITR not only in the place of legal residence but,
alternately, in his place of business. Petitioner notes that private respondent’s own evidence shows that petitioner
has no business in Lipa City, leaving only his residence therein as basis for filing his ITR therein.

Hence, in resolving the issue of whether the COMELEC gravely abused its discretion in ruling that petitioner had not
sufficiently shown that he had resided in Lipa City for at least one year prior to the May 2010 elections, we examine
the evidence adduced by the parties and the COMELEC’s appreciation thereof.

In the present case, the parties are in agreement that the domicile of origin of Sabili was Brgy. Sico, San Juan,
Batangas. He claims that he abandoned his domicile of origin and established his domicile of choice in Brgy.
Pinagtong-ulan, Lipa City, thereby making him qualified to run for Lipa City mayor. On the other hand, respondent
COMELEC held that no such change in domicile or residence took place and, hence, the entry in his Certificate of
Candidacy showing that he was a resident of Brgy. Pinagtong-ulan, Lipa City constituted a misrepresentation that
disqualified him from running for Lipa City mayor.

To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of
the intention to make it one's fixed and permanent place of abode. As in all administrative cases, the quantum of
53 

proof necessary in election cases is substantial evidence, or such relevant evidence as a reasonable mind will
accept as adequate to support a conclusion. 54

The ruling on private respondent’s evidence

We begin with an evaluation of the COMELEC’s appreciation of private respondent’s evidence.

a) Petitioner’s Voter Certification, Registration and COCs in previous elections

Petitioner’s Voter Certification is a common exhibit of the parties. It states, among others, that petitioner is a resident
of Pinagtong-ulan, Lipa City, Batangas; that he had been a resident of Lipa City for two (2) years and three (3)
months; and that he was so registered on 31 October 2009. The information therein was "certified correct" by
COMELEC Election Officer Juan B. Aguila, Jr.

Private respondent presented this document as proof that petitioner misrepresented that he is a resident of Lipa
City. On the other hand, the latter presented this document as proof of his residency.

The COMELEC correctly ruled that the Voter Certification issued by the COMELEC Election Officer, Atty. Juan B.
Aguila, Jr., was not conclusive proof that petitioner had been a resident of Lipa City since April 2007. It noted that
Aguila is not the competent public officer to certify the veracity of this claim, particularly because petitioner’s
COMELEC registration was approved only in October 2009.

The Voter Registration Record of petitioner accomplished on 21 June 1997 showing that he was a resident of Sico,
San Juan, Batangas, as well as his various COCs dated 21 June 1997 and March 2007 indicating the same thing,
were no longer discussed by the COMELEC – and rightly so. These pieces of evidence showing that he was a
resident of Sico, San Juan, Batangas on the said dates are irrelevant as, prior to April 2007, petitioner was
admittedly a resident of Sico, San Juan Batangas. Rather, the relevant time period for consideration is that from
April 2007 onwards, after petitioner’s alleged change of domicile.

b) Certificates regarding ownership of real property

The various certificates and tax declarations adduced by private respondent showed that the Lipa property was
solely registered in the name of petitioner’s common-law wife, Bernadette Palomares. In discussing the import of
this document, the COMELEC reasoned that, being a "seasoned politician," he should have registered the Lipa
property (which he claimed to have purchased with his personal funds) in his own name. Such action "would have
offered positive proof of intent to change actual residence" from San Juan, Batangas to Lipa City, considering that
he had previously declared his ancestral home in San Juan, Batangas as his domicile. Since Palomares and
petitioner are common-law spouses not capacitated to marry each other, the property relation between them is
governed by Article 148 of the Family Code, where only the parties’ actual contributions are recognized. Hence,
55 

petitioner cannot prove ownership of a property and residence in Lipa City through the registered ownership of the
common-law wife of the property in Lipa City.

On the other hand, petitioner bewails the inordinate emphasis that the COMELEC bestowed upon the question of
whether the Lipa property could be considered as his residence, for the reason that it was not registered in his
name. He stresses that the issue should be residence, not property ownership.

It is true that property ownership is not among the qualifications required of candidates for local election. Rather, it
56 

is a candidate’s residence in a locality through actual residence in whatever capacity. Indeed, we sustained the
COMELEC when it considered as evidence tending to establish a candidate’s domicile of choice the mere lease
(rather than ownership) of an apartment by a candidate in the same province where he ran for the position of
governor. In the more recent case of Mitra v. Commission on Elections, we reversed the COMELEC ruling that a
57  58 

candidate’s sparsely furnished, leased room on the mezzanine of a feedmill could not be considered as his
residence for the purpose of complying with the residency requirement of Section 78 of the Omnibus Election
Code. 59

The Dissent claims that the registration of the property in Palomares’s name does not prove petitioner’s residence
as it merely showed "donative intent" without the necessary formalities or payment of taxes.

However, whatever the nature of the transaction might be, this point is immaterial for the purpose of ascertaining
petitioner’s residence. We have long held that it is not required that a candidate should have his own house in order
to establish his residence or domicile in a place. It is enough that he should live in the locality, even in a rented
house or that of a friend or relative. What is of central concern then is that petitioner identified and established a
60 

place in Lipa City where he intended to live in and return to for an indefinite period of time.

Hence, while the COMELEC correctly ruled that, of itself, Palomares’ ownership of the Lipa property does not prove
that she or – and in view of their common-law relations, petitioner – resides in Lipa City, nevertheless, the existence
of a house and lot apparently owned by petitioner’s common-law wife, with whom he has been living for over two
decades, makes plausible petitioner’s allegation of bodily presence and intent to reside in the area.

c) Certifications regarding the family members of petitioner

Private respondent presented a Certification from the DepEd, Lipa City Division, indicating that the names
Bernadette Palomares, Mey Bernadette Sabili (petitioner’s daughter) and Francis Meynard Sabili (petitioner’s son)
do not appear on the list of graduates of Lipa City. Private respondent also presented a Certification from the Office
of the Election Officer of Lipa City that the names of these family members of petitioner do not appear in its list of
voters.

As the issue at hand is petitioner’s residence, and not the educational or voting record of his family, the COMELEC
properly did not consider these pieces of evidence in arriving at its Resolution.

The Dissent nevertheless asserts that because his children do not attend educational institutions in Lipa and are not
registered voters therein, and because petitioner does not maintain a business therein nor has property

in his name, petitioner is unable to show the existence of real and substantial reason for his stay in Lipa City.

As to the Dissent’s first assertion, it must be stressed that the children, like the wife, do not dictate the family
domicile. Even in the context of marriage, the family domicile is jointly decided by both husband and wife. In 61 

addition, we note that the transfer to Lipa City occurred in 2007, when petitioner’s children were already well into
college and could very well have chosen to study elsewhere than in Lipa City.

Also, it is petitioner’s domicile which is at issue, and not that of his children. But even assuming that it was petitioner
himself (rather than his children) who attended educational institutions or who registered as a voter in a place other
than Lipa City, we have held that "absence from residence to pursue studies or practice a profession or registration
as a voter other than in the place where one is elected, does not constitute loss of residence." In fact, Section 117
62 

of the Omnibus Election Code provides that transfer of residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational activities; work in military or naval reservations;
service in the army, navy or air force, the constabulary or national police force; or confinement or detention in
government institutions in accordance with law" is not deemed as loss of residence.

As to the Dissent’s second assertion, petitioner apparently does not maintain a business in Lipa City. However,
apart from the Pinagtong-ulan property which both Suarez (the previous property owner) and Palomares swear was
purchased with petitioner’s own funds, the records also indicate that there are two other lots in Lipa City, particularly
in Barangay Lodlod, Lipa City which are registered jointly in the name of petitioner and Palomares. In fact, it was
63 

private respondent who presented the Lipa City Assessor’s Certificate to this effect. Even assuming that this Court
were to disregard the two Lodlod lots, it is well-established that property ownership (and similarly, business interest)
in the locality where one intends to run for local elective post is not requirement of the Constitution. 64

More importantly, we have gone so far as to rule that there is nothing "wrong in an individual changing residences
so he could run for an elective post, for as long as he is able to prove with reasonable certainty that he has

effected a change of residence for election law purposes for the period required by law." 65

d) Affidavits of Lipa City residents

Private respondent also presented the affidavits of Violeta Fernandez and Rodrigo Macasaet, who were also
66  67 

residents of Pinagtong-ulan. Both stated that petitioner did not reside in Pinagtong-ulan, as they had "rarely seen"
him in the area. Meanwhile, Pablo Lorzano, in his Affidavit, attested that although the Lipa property was sometimes
68 
used for gatherings, he did "not recall having seen" petitioner in their barangay. On the other hand, private
respondent and Eladio de Torres, both residents of Brgy. Calamias, reasoned that petitioner was not a resident of
69  70 

Lipa City because he has no work or family there.

The COMELEC did not discuss these Affidavits in its assailed Resolution. It was correct in doing so, particularly
considering that these Affidavits were duly controverted by those presented by petitioner.

Moreover, even assuming the truth of the allegation in the Affidavits that petitioner was "rarely seen" in the area, this
does not preclude the possibility of his residence therein. In Fernandez v. House of Representatives Electoral
Tribunal, we held that the averments of certain barangay health workers – that they failed to see a particular
71 

candidate whenever they made rounds of the locality of which he was supposed to be a resident – is of no moment.
It is possible that the candidate was out of the house to attend to his own business at the time. The law does not
require a person to be in his home twenty-four (24) hours a day, seven (7) days a week, to fulfill the residency
requirement.

The ruling on petitioner’s evidence

We now evaluate how the COMELEC appreciated petitioner’s evidence:

a) Petitioner’s Income Tax Returns for 2007 and 2008

The Income Tax Returns of petitioner presented below showed that petitioner had been paying his Income Tax
(2007 and 2008) to the Revenue District Office of Lipa City. In waving aside his Income Tax Returns, the COMELEC
held that these were not indications of residence since Section 51(B) of the National Internal Revenue Code does
not only state that it shall be filed in a person’s legal residence, but that it may alternatively be filed in a person’s
principal place of business.

In particular, Section 51(B) of the National Internal Revenue Code provides that the Income Tax Return shall be
72 

filed either in the place where a person resides or where his principal place of business is located. However, private
respondent’s own evidence – a Certification from the City Permits and Licensing Office of Lipa City– showed that
there was no business registered in the City under petitioner’s name.

Thus, COMELEC failed to appreciate that precisely because an individual income tax return may only be filed either
in the legal residence OR the principal place of business, as prescribed under the law, the fact that Sabili was filing
his Income Tax Returns in Lipa City notwithstanding that he had no business therein showed that he had actively
elected to establish his residence in that city.

The Dissent claims that since the jurisdiction of RDO Lipa City includes both San Juan and Lipa City, petitioner’s
filing of his ITR therein can also support an intent to remain in San Juan, Batangas - petitioner’s domicile of origin.

However, a simple perusal of the Income Tax Returns and Revenue Official Receipts for 2007 and 2008 shows that
petitioner invariably declares his residence to be Pinagtong-ulan, Lipa City, rather than San Juan,
Batangas. Hence, while petitioner may be submitting his income tax return in the same RDO, the declaration
73 

therein is unmistakable. Petitioner considers Lipa City to be his domicile.

b) Certification from the Barangay Captain of Pinagtong-ulan

The COMELEC did not consider in the first instance the Certification issued by Pinagtong-ulan Barangay Captain
Dominador Honrade (Honrade) that petitioner had been residing in Brgy Pinagtong-ulan since 2007. When this
74 

oversight was raised as an issue in petitioner’s Motion for Reconsideration, the COMELEC brushed it aside on the
ground that the said Certification was not sworn to before a notary public and, hence, "cannot be relied on."
Subsequently, petitioner presented another, substantially identical, Certification from the said Pinagtong-ulan
Barangay Captain, save for the fact that it had now been sworn to before a notary public.

We disagree with the COMELEC’s treatment of the Barangay Captain’s Certification and find the same tainted with
grave abuse of discretion.

Even without being sworn to before a notary public, Honrade’s Certification would not only be admissible in
evidence, but would also be entitled to due consideration.

Rule 130, Section 44 of the Rules of Court provides:

SEC. 44. Entries in official records.—Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.
In Country Bankers Insurance Corporation v. Lianga Bay and Community Multi-purpose Cooperative, Inc., we 75 

explained that the following three (3) requisites must concur for entries in official records to be admissible in
evidence:

(a) The entry was made by a public officer, or by another person specially enjoined by law to do so;

(b) It was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and

(c) The public officer or other person had sufficient knowledge of the facts stated by him, which facts must
have been acquired by him personally or through official information.

As to the first requisite, the Barangay Secretary is required by the Local Government Code to "keep an updated
record of all inhabitants of the barangay." Regarding the second requisite, we have explicitly recognized in Mitra v.
76 

Commission on Elections, that "it is the business of a punong barangay to know who the residents are in his own
77 

barangay." Anent the third requisite, the Barangay Captain’s exercise of powers and duties concomitant to his
78 

position requires him to be privy to these records kept by the Barangay Secretary.

Accordingly, there is basis in faulting the COMELEC for its failure to consider Honrade’s Certification on the sole
ground that it was initially not notarized.

Meanwhile, the Dissent opines that the sworn affidavit of the barangay chair of Pinagtong-ulan that petitioner is a
resident of Lipa City does not help petitioner’s case because it was not shown that the term "resident" as used
therein carries the same meaning as domicile, that is, not merely bodily presence but also, animus manendi or
intent to return. This Court has ruled otherwise.

In Mitra v. Commission on Elections, the declaration of Aborlan’s punong barangay that petitioner resides in his
79 

barangay was taken to have the same meaning as domicile, inasmuch as the said declaration was made in the face
of the Court’s recognition that Mitra "might not have stayed in Aborlan nor in Palawan for most of 2008 and 2009
because his office and activities as a Representative were in Manila."

Assuming that the barangay captain’s certification only pertains to petitioner’s bodily presence in Pinagtong-ulan,
still, the COMELEC cannot deny the strength of this evidence in establishing petitioner’s bodily presence in
Pinagtong-ulan since 2007.

c) Affidavit of petitioner’s common law wife

To substantiate his claim of change of domicile, petitioner also presented the affidavit of Palomares, wherein the
latter swore that she and petitioner began residing in Lipa City in 2007, and that the funds used to purchase the Lipa
property were petitioner’s personal funds. The COMELEC ruled that the Affidavit was self-serving for having been
executed by petitioner’s common-law wife. Also, despite the presentation by petitioner of other Affidavits stating that
he and Palomares had lived in Brgy. Pinagtong-ulan since 2007, the latter’s Affidavit was rejected by the COMELEC
for having no independent collaboration.

Petitioner faults the COMELEC’s stand, which it claims to be inconsistent. He argues that since the property regime
between him and Palomares is governed by Article 148 of the Family Code (based on the parties’ actual
contribution) as the COMELEC stressed, then Palomares’s Affidavit expressly stating that petitioner’s money alone
had been used to purchase the Lipa property (notwithstanding that it was registered in her name) was not self-
serving, but was in fact, a declaration against interest.

Petitioner’s argument that Palomares’s affidavit was a "declaration against interest" is, strictly speaking, inaccurate
and irrelevant. A declaration against interest, under the Rules of Civil Procedure, refers to a "declaration made by a
person deceased, or unable to testify against the interest of a declarant, if the fact asserted in the declaration was at
the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true." A declaration against interest is an exception to the
80 

hearsay rule. As such, it pertains only to the admissibility of, not the weight accorded to, testimonial evidence.
81  82

Nevertheless, we see the logic in petitioner’s claim that the COMELEC had committed grave abuse of discretion in
being inconsistent in its stand regarding Palomares, particularly regarding her assertion that the Lipa property had
been purchased solely with petitioner’s money. If the COMELEC accepts the registration of the Lipa property in her
name to be accurate, her affidavit disavowing ownership thereof in favor of petitioner was far from self-serving as it
ran counter to her (and her children’s) property interest.

The Dissent states that it was not unreasonable for the COMELEC to believe that Palomares may have committed
misrepresentations in her affidavit considering that she had perjured herself as an informant on the birth certificates
of her children with respect to the supposed date and place of her marriage to petitioner. However, this was not the
reason propounded by the COMELEC when it rejected Palomares’ affidavit.
Moreover, it is notable that Palomares’ assertion in her affidavit that she and petitioner have been living in the
Pinagtong-ulan property since April 2007 is corroborated by other evidence, including the affidavits of Pinagtong-
ulan barangay officials and neighbors.

d) Affidavits from a previous property owner, neighbors, certificate from parish and designation from socio-civic
organization

The Affidavit issued by Leonila Suarez (erstwhile owner of the Lipa house and lot) states that in April 2007, after
83 

she received the down payment for the Lipa property and signed an agreement that petitioner would settle her bank
obligations in connection with the said transaction, he and Palomares actually started residing at Pinagtong-ulan.
The COMELEC brushed this Affidavit aside as one that "merely narrates the circumstances surrounding the sale of
the property and mentions in passing that Sabili and Palomares lived in Pinagtong-ulan since April 2007 up to the
present."84

We disagree with the COMELEC’s appreciation of the Suarez Affidavit. Since she was its owner, transactions for the
purchase of the Lipa property was within her personal knowledge. Ordinarily, this includes the arrangement
regarding who shall pay for the property and when, if ever, it shall be occupied by the buyers. We thus consider that
her statements impact positively on petitioner’s claim of residence.

The Dissent on the other hand argues that the claim that petitioner started living in the Lipa house and lot in April
2007 is made dubious by the fact that (1) there might not be enough time to effect an actual and physical change in
residence a month before the May 2007 elections when petitioner ran for representative of the 4th District of
Batangas; and (2) the Deed of Absolute Sale was notarized, and the subsequent transfer of ownership in the tax
declaration was made, only in August 2008.

Before further discussing this, it is pertinent to point out that these were not the reasons adduced by the COMELEC
in the assailed Resolutions. Assuming that the above reasons were the unuttered considerations of the COMELEC
in coming up with its conclusions, such reasoning still exhibits grave abuse of discretion.

As to the Dissent’s first argument, it must be remembered that a transfer of domicile/residence need not be
completed in one single instance. Thus, in Mitra v. Commission on Elections, where the evidence showed that in
85 

2008, petitioner Mitra had leased a small room at Maligaya Feedmills located in Aborlan and, in 2009 purchased in
the same locality a lot where he began constructing his house, we recognized that petitioner "transferred by
incremental process to Aborlan beginning 2008 and concluded his transfer in early 2009" and thus, he transferred
his residence from Puerto Princesa City to Aborlan within the period required by law. We cannot treat the transfer to
the Pinagtong-ulan house any less than we did Mitra’s transfer to the Maligaya Feedmills room. 1âwphi1

Moreover, the Joint Affidavit of twenty-one (21) Pinagtong-ulan residents, including former and incumbent barangay
officials, attests that petitioner had begun living in the Pinagtong-ulan house and lot before the May 2007 elections
such that it was where his coordinators for the May 2007 elections went to meet him. Jacinto Cornejo Sr., the
86 

contractor who renovated the Pinagtong-ulan house when it was bought by petitioner, also swore that petitioner and
his family began living therein even while it was being renovated. Another Affidavit petitioner adduced was that of
87 

Rosalinda Macasaet, a resident of Brgy. Pinagtong-ulan, who stated that she also sold a lot she owned in favor of
88 

petitioner and Palomares. The latter bought her lot since it was adjacent to the Lipa house and lot they had earlier
acquired. Macasaet also swore that the couple had actually resided in the house located in Pinagtong-ulan since
April 2007, and that she knew this because her own house was very near the couple’s own. Macasaet’s Affidavit is a
positive assertion of petitioner’s actual physical presence in Brgy. Pinagtong-ulan, Lipa City.

While private respondent had adduced affidavits of two Pinagtong-ulan residents (that of Violeta Fernandez and 89 

Rodrigo Macasaet) attesting that petitioner could not be a resident of Pinagtong-ulan as he was "rarely seen" in the
90 

area, these affidavits were controverted by the Joint affidavit of twenty-one (21) Pinagtong-ulan residents who
plainly accused the two of lying. Meanwhile, the affidavits of private respondent and Eladio de Torres stating that
91  92 

petitioner is not a resident of Lipa City because he has no work or family there is hardly worthy of credence since
both are residents of Barangay Calamias, which is, and private respondent does not contest this, about 15
kilometers from Pinagtong-ulan.

As to the Dissent’s second argument, the fact that the notarization of the deed of absolute sale of the property was
made months after April 2007 does not negate petitioner’s claim that he started residing therein in April 2007. It is
clear from the Affidavit of the property’s seller, Leonila Suarez, that it was not yet fully paid in April 2007, so it was
understandable that a deed of absolute sale was not executed at the time. Thus:

That initially, the contract to sell was entered into by and between Mr. & Mrs. Meynardo Asa Sabili and Bernadette
Palomares and myself, but eventually the spouses changed their mind, and after the couple settled all my loan
obligations to the bank, they requested me to put the name of Ms. Bernadette P. Palomares instead of Mr. & Mrs.
Meynardo Asa Sabili and Bernadette Palomares in the absolute deed of sale;

That it was Mr. Meynardo Asa Sabili who came to my former residence at Barangay Pinagtong-ulan sometime in the
month of April 2007. At that time, Mr. Meynardo Asa Sabili was still running for Representative (Congressman) in
the 4th District of Batangas;
That after payment of the down payment and signing of an agreement that Mr. Meynardo Asa Sabili will be the one
to settle my bank obligations, Mr. & Mrs. Meynardo A. Sabili and Bernadette Palomares had an actual transfer of
their residence at Barangay Pinagtong-ulan, Lipa City;

That they started living and residing in Pinagtong-ulan in the month of April, 2007 up to this point in time; xxx 93

As to the rest of the documents presented by petitioner, the COMELEC held that the Memorandum issued by the
Guardians Brotherhood Inc. San Jose/Lipa City Chapter merely declares the designation of petitioner in the
organization, without any showing that residence in the locality was a requirement for that designation. Meanwhile,
the Certificate of Appreciation was nothing more than an acknowledgment of petitioner’s material and financial
support, and not an indication of residence.

We agree that considered separately, the Guardians Brotherhood Memorandum and the Pinagtong-ulan Parish
Certificate of Appreciation do not establish petitioner’s residence in Pinagtong-ulan, Lipa City. Nevertheless,
coupled with the fact that petitioner had twice been elected as Provincial Board Member representing the Fourth
District of Batangas, which encompasses Lipa City, petitioner’s involvement in the religious life of the community, as
attested to by the certificate of appreciation issued to him by the Pinagtong-ulan parish for his "material and financial
support" as President of the Barangay Fiesta Committee in 2009, as well as his assumption of a leadership role in
the socio-civic sphere of the locality as a member of the advisory body of the Pinagtong-ulan, San Jose/Lipa City
Chapter of the Guardians Brotherhood Inc. , manifests a significant level of knowledge of and sensitivity to the
needs of the said community. Such, after all, is the rationale for the residency requirement in our elections laws, to
wit:

The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in
order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth
and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office
seekers’ qualifications and fitness for the job they aspire for xxx. 
94

Considering all of the foregoing discussion, it is clear that while separately, each evidence presented by petitioner
might fail to convincingly show the fact of his residence at Pinagtong-ulan since 2007, collectively, these pieces of
evidence tend to sufficiently establish the said fact.

Petitioner’s actual physical presence in Lipa City is established not only by the presence of a place (Pinagtong-ulan
house and lot) he can actually live in, but also the affidavits of various persons in Pinagtong-ulan, and the
Certification of its barangay captain. Petitioner’s substantial and real interest in establishing his domicile of choice in
Lipa City is also sufficiently shown not only by the acquisition of additional property in the area and the transfer of
his voter registration, but also his participation in the community’s socio-civic and religious life, as well as his
declaration in his ITR that he is a resident thereof.

We therefore rule that petitioner has been able to adduce substantial evidence to demonstrate compliance with the
one-year residency requirement for local elective officials under the law.

In view of this Court’s finding that petitioner has not misrepresented his residence at Pinagtong-ulan and the
duration thereof, there is no need to further discuss whether there was material and deliberate misrepresentation of
the residency qualification in his COC. 1âwphi1

As a final note, we do not lose sight of the fact that Lipa City voters manifested their own judgment regarding the
qualifications of petitioner when they voted for him, notwithstanding that the issue of his residency qualification had
been raised prior to the elections. Petitioner has garnered the highest number of votes (55,268 votes as opposed to
the 48,825 votes in favor of his opponent, Oscar Gozos) legally cast for the position of Mayor of Lipa City and has
95 

consequently been proclaimed duly elected municipal Mayor of Lipa City during the last May 2010 elections 96

In this regard, we reiterate our ruling in Frivaldo v. Commission on Elections that "(t)o successfully challenge a
97 

winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the
apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote."

Similarly, in Japzon v. Commission on Elections, we concluded that "when the evidence of the alleged lack of
98 

residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the
purpose of the law would not be thwarted by upholding the victor's right to the office, the will of the electorate should
be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters."

In sum, we grant the Petition not only because petitioner sufficiently established his compliance with the one-year
residency requirement for local elective officials under the law. We also recognize that "(a)bove and beyond all, the
determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that
must prevail. This, in essence, is the democracy we continue to hold sacred." 99
WHEREFORE, premises considered, the Petition is GRANTED. The assailed COMELEC Resolutions dated 26
January 2010 and 17 August 2010 in Florencio Librea v. Meynardo A. Sabili [SPA No. 09-047(DC)] are ANNULLED.
Private respondent’s Petition to cancel the Certificate of Candidacy of Meynardo A. Sabili is DENIED. The Status
Quo Ante Order issued by this Court on 7 September 2010 is MADE PERMANENT.

SO ORDERED.